A simple conclusion of law now confronts lawyers for some 385 foreign nationals still being held captive by the U.S. military at Guantanamo Bay, Cuba: A foreigner “without property or presence in this country has no constitutional rights, under the due process clause or otherwise.” That is the way the D.C. Circuit Court summed up in a ruling on Feb. 20 in two packets of detainees cases — a ruling that the Supreme Court has now twice refused to review (once on April 2, again on Monday). Until a point arrives at which the Supreme Court might become ready to review that conclusion, it is binding and it will shape ongoing contests in lower courts in coming months, even though those contests focus mainly on questions of federal statutory not constitutional law.
Having no constitutional rights, of course, is not the same as having no rights at all. Congress has recently passed two laws — the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 — that control the legal destiny of the Guantanamo detainees, and each of them provides at least some measure of judicial review of detainees’ claims. But the absence of any enforceable rights under the Constitution is likely to have an influence at least on the atmospherics of the continuing legal contests, reminding judges that they are operating mainly in a realm of presidential and congressional discretion.
The Supreme Court’s actual and potential role as the ultimate constitutional arbiter of the “war on terrorism” has been in the background as it put itself into the midst of the controversy over detainees’ legal rights in 2004, and as it remained involved since then. But on Monday, the Court made it clear, in denying review of the latest detainees’ appeal without comment, that it is putting itself and its constitutional authority on the sidelines, at least for the time being. Right now, it appears that the only thing that would draw the Court back into the fray anytime soon would be a split in the Circuit Courts; the Fourth Circuit Court in Richmond, Va., is weighing a case involving some of the same issues the D.C. Circuit Court decided and the Supreme Court refused to review this month. What the Fourth Circuit will do is, of course, unknown, but it could act soon.
The Bush Administration, from the beginning of the federal courts’ engagement with the detainees, has held steadily to the argument that the detainees have no constitutional rights and thus have only so much protection as Congress was willing to provide to them. That core argument has never been upheld explicitly by the Supreme Court, but it has now prevailed in the D.C. Circuit Court — the appeals court that, from here on, will play the central role among lower courts in defining the law as it applies to detainees. Although the Supreme Court has twice overruled that Court on detainee matters (in 2004 and 2006), it has now signaled to that Court that it may proceed as the judge of detainee rights.
It is possible to read the Justices’ simple order on Monday as sending no signals whatsoever, at least not intentionally. Whether detainees or their lawyers can take any heart from that, however, is far from clear.
Here are the facts about what the Court did Monday:
It had before it a quite unusual joint appeal — one a direct appeal from a U.S. District Court dismissing Salim Ahmed Hamdan’s habeas challenge to his coming war crimes tribunal before a “military commission,” the other an appeal by Omar Ahmed Khadr from the same Circuit Court ruling that the Justices opted to bypass on April 2. They were different from the detainee cases denied review early in the month, because those detainees (or at least most of them) faced only continuing imprisonment at Guantanamo, while Hamdan and Khadr are facing war crimes trials with severe punishment — perhaps death — awaiting conviction.
It is conceivable that the Court (except for three Justices who wanted to hear the appeal) concluded that this simply was not the right procedural way to bring up the legal plight of those facing war crimes trials. Hamdan, the Court might have concluded, will have another chance to pursue a regular appeal to the D.C. Circuit to try to reinstate his challenge to the “military commissions” system, and Khadr could take a part in that, at least as an amicus, so their claims had not been scuttled.
But that might be of little reassurance to Hamdan and Khadr, because with the Supreme Court’s denial of review of their appeal, the Pentagon confronts no present barrier to going forward with their war crimes trials.
Moreover, Hamdan and Khadr, like other detainees, will be pursuing what remains of their legal claims before a Circuit Court that has already declared that they have no constitutional rights, and that they are limited to whatever judicial review they can claim under Congress’ 2005 and 2006 laws on detainee challenges. And, it will be that Court that will decide, in the first instance, just what Congress has granted in the way of judicial review. The detainees’ lawyers have been of the view, since both the 2005 and 2006 laws were passed, that neither provides them with legal safeguards either as to their status as “enemy combatants” subject to continuing confinement, or as to the processes that will unfold in war crimes trials. There is no assurance that the Circuit Court will weigh the legality of either of those processes under the Constitution, or under any other federal law but the Detainee Treatment Act and the Military Commissions Act. Those two laws embody significant congressional deference to the military to govern its own proceeedings.
In addition, Hamdan and Khadr, as war crimes defendants, may have to go through trials and be convicted before they would be allowed to pursue any appeal before the Circuit Court.
It is these considerations, in combination, that may suggest that the legal status of the detainees overall is currently at its lowest ebb since just before the Supreme Court stepped in in 2004. It is apparent that platoons of creative lawyers, trying what seems to be almost every conceivable form of legal challenge in representing detainees, have arrived — at least temporarily — on the losing end.
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