Crimes, War Crimes and the War on Terror

[jmm99]

For those who might be interested:

http://supremecourtus.gov/opinions/07pdf/06-1195.pdf



As I started writing this, 4 political pundits were screaming at each other about this case. No way any of them could have read the case, much less considered it.

Here are the key portions of the holding, as opposed to the dicta:

Cite as: 553 U. S. ____ (2008),

p. 65 (slip):

"In cases involving foreign citizens detained abroad by the Executive, it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody. If and when habeas corpus jurisdiction applies, as it does in these cases, then proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time."

p. 66 (slip):

"Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court. The only law we identify as unconstitutional is MCA §7, 28 U. S. C. A. §2241(e) (Supp. 2007). Accordingly, both the DTA and the CSRT process remain intact."

p. 66-67 (slip):

"Our holding with regard to exhaustion should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status."

p. 67-68 (slip):

"We make no attempt to anticipate all of the evidentiary and access-to-counsel issues that will arise during the course of the detainees’ habeas corpus proceedings. We recognize, however, that the Government has a legitimate interest in protecting sources and methods of intelligence gathering; and we expect that the District Court will use its discretion to accommodate this interest to the greatest extent possible."

p. 68 (slip):

"These and the other remaining questions are within the expertise and competence of the District Court to address in the first instance."

So, this seems only the first stage of a longer process. There seems an implication that Congress should amend the statutes to provide a better administrative adjudicative procedure.

Justices Roberts' and Scalia's dissents are worth reading. Roberts is more of a practical and less emotive bent.