The Right Coast

June 28, 2004
Litigation as warfare
By Tom Smith

I suppose the good news about Eugene's good point that captured enemy combatants can now apparently file habeas petitions to contest their imprisonment is that Congress can fix it if they want to (can't they?) by amending Section 2241, the habeas statute. I think most Americans would think the idea of combatants captured in battle being able to sue pretty silly. You could make some funny ad copy out of it.

Of course, once the trial lawyers get ahold of it, you might get a statute authorizing suits for damages in the event enemy combatants were harmed in the course of battle. Even those who were not harmed physically of course, might have suffered emotional pain and suffering.

No big surprize, I find myself agreeing with Scalia regarding the US citizens. Suspend habeas or charge them with treason. Treason still carries a death penalty, doesn't it? I imagine the threat of the long drop would persuade citizen-terrorists to talk as effectively as stress positions. And if you're running around with an AK47 in some hellhole and you're not a Marine, I imagine there are lots of juries in our Southland that would take a dim view of your story about cultural tourism and hunting lessons gone bad.

As to Gitmo, it just looks like the Supremes doing their usual of disregarding a clear precedent in order to impose a really silly reading on an otherwise unobjectionable law. It's really rather discouraging. In those rare instances that Congress has not imposed some ludricrous legal regime, the Courts can be counted on to do so. Scalia writes:

The reality is this: Today’s opinion, and today’s opinion alone, overrules Eisentrager; today’s opinion, and today’s opinion alone, extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its
courts. No reasons are given for this result; no acknowledgment of its consequences made. By spurious reliance on Braden the Court evades explaining why stare decisis can be disregarded, and why Eisentrager was wrong. Normally, we consider the interests of those who have relied on our decisions. Today, the Court springs a trap on the Executive, subjecting Guantanamo Bay to the oversight of the federal courts even though it has never before been thought to be within their jurisdiction—and thus making it a foolish place to have housed alien wartime detainees.

As usual, a good point. Still, I suppose the Executive and the military can be faulted for naively supposing that settled law to the contrary would stop the Supreme Court from extending jurisdiction to the imprisoned terrorists. The federal courts have proven they do a good job running prisons, right?

And gosh, I guess it's a good thing Saddam is now is the legal custody of the sovereign nation of Iraq, or our criminal defense lawyer cum law professors would be lining up to prosecute his habeas petition!