Interest and Perspective

I reported earlier on this blog about the unconstitutional suspension of the writ of habeas corpus which the Congress allowed and the President signed into law this past October. Now, the first ruling on this illegal action has been issued. The court acceded to the government and OKed the illegal and unconstitutional repeal of habeas corpus, and fairly begged to be reversed - this, after all, is the same judge who originally balked at the government's detention of Mr. Hamdan without due process. The Court helds that Congress' repealing its statutory grant of habeas jurisdiction did not unconstitutionally susped the writ, and also that no right to habeas found in the constitution will help Mr. Hamdan:

The Military Commissions Act and the briefs of the parties present three questions: (1) As a matter of statutory interpretation and construction, did Congress actually succeed in removing our statutory habeas jurisdiction over the detainee habeas cases? (2) If so, is the Military Commissions Act a constitutionally valid “suspension” of the writ of habeas corpus within the meaning of the Suspension Clause, U.S. Const. art. I § 9 cl. 2? (3) If not, and if a “constitutional” writ of habeas corpus survives the Military Commissions Act, does Hamdan have a right to seek such a writ? The answers to these questions are “yes” to number (1) and “no” to numbers (2) and (3).

This isn't over by a long shot. The court decides that the Military Commission Act is similar to the Anti-Terrorism and Effective Death Penalty Act in that both merely trim jurisdiction - the latter by limiting repeat petitions and the former by limiting the forum available. Next, the court decdes that Hamdan has no right to consitutitional habeas (apart from habeas rights the MCA abrogated) because he's not an American by citizenship or culture.

First, the decision that Hamdan has no right to constitutional habeas because he's not an American by citizenship or culture would seem to violate the spirit, if not the narrow holding, of _Rasul_ and merits reversal, despite the court's feeble attempt to distinguish that case. The judge has made out of whole cloth the rule that only "real" Americans get constitutional habeas; pointing to a few stale cases doesn't carry his point. It was also interesting that he didn't mention Korematsu at all.

Hamdan II, here we come.


UPDATE: Lyle Denniston at the Akin & Gump SCOTUSblog has the following interpretation; I believe we agree on the substance:

Here is the conclusion of Robertson's decision: "Congress's removal of jurisdiction from the federal courts was not a suspension of habeas corpus within the meaning of the Suspension Clause (or, to the extent that it was, it was plainly unconstitutiional, in the absence of rebellion or invasion), but Hamdan's statutory access to the writ is blocked by the jurisdiction-stripping language of the Military Commissions Act, and he has no constitutional entitlement to habeas corpus. Hamdan's habeas petition must accordingly be dismissed for want of subject matter jurisdiction."

The NYT has reported on the conditions of Jose Padilla's confinement in Florida. I attach, below, pictures that have been filed in the federal district court to show the "outrageous conduct" of the government which the defense says precludes prosecution. These slides are a matter of public record and are available from the court. The slides are taken from a video capture that has not been publicly filed with the court in its entirety.

As Deborah Sontag reports,

Padilla, fitted with blacked-out goggles, was videotaped by the government when he was allowed outside solitary confinement to see a dentist. One spring day during his three and a half years as an enemy combatant, Jose Padilla experienced a break from the monotony of his solitary confinement in a bare cell in the brig at the Naval Weapons Station in Charleston, S.C.

Several guards in camouflage and riot gear approached cell No. 103. They unlocked a rectangular panel at the bottom of the door and Mr. Padilla’s bare feet slid through, eerily disembodied. As one guard held down a foot with his black boot, the others shackled Mr. Padilla’s legs. Next, his hands emerged through another hole to be manacled.

Wordlessly, the guards, pushing into the cell, chained Mr. Padilla’s cuffed hands to a metal belt. Briefly, his expressionless eyes met the camera before he lowered his head submissively in expectation of what came next: noise-blocking headphones over his ears and blacked-out goggles over his eyes. Then the guards, whose faces were hidden behind plastic visors, marched their masked, clanking prisoner down the hall to his root canal.

Pictures of that transport:








An expert psychiatrist for the defense has testified, after 22 hours of examination, that Mr. Padilla's treatment has made him unable to understand the proceedings against him and assist his lawyers.

It's important to understand that these pictures provide only a glimpse of Mr. Padilla's living conditions. Read the whole NYT story and place yourself in the shoes of this man who guards say behaves more like a "piece of furniture" than a human being.

Imagine this life. The man hasn't even been tried yet, and would be held under much better conditions if he had not been labeled an enemy combatant by the Administration (as opposed to the conditions seen here, or even state or federal prison). Padilla faces two charges that each only carry a maximum of fifteen years.