LAW FROM THE CENTER

Yesterday, the Attorney General filed a brief (from SCOTUSblog) in Rasul v. US, the consolidated cases challenging the legality of alien detention in Guantanomo Bay. The key issue for review at the Supreme Court level is whether the judicial branch has the power at all to review this type of claim. The government cites Johnson v. Eisentrager, 339 US 763 (1950), as authority. That case was about a habeus petition from German nationals seized after World War II, tried in war crimes tribunals, and imprisoned in a US-controlled facility in Germany. The court held there that neither Title 28 of the US Code, nor the Federal Constitution, granted courts the jurisdiction to hear these types of cases.

ANALYSIS: The AG's precedential argument is hard to evade. The Eisentrager case seems to be clearly on point, and most of the petitioner's legal arguments try to distinguish from this on-point authority instead of offering their own. In that case, they were foreign nationals; in this case, they are foreign nationals. In that one, the petitioners were held on foreign soil; in this one, they are on foreign soil. In that one, they were being held on a base that, while under US control, was under German sovereignty; the same goes for the instant case. In almost every relevant aspect, the two cases are the same, and any distinguishing argument is weak at best.

THE PROBLEM comes when the government tries to justify retaining this 54-year old precedent from another era and another crisis. The government's policy arguments seem very underdeveloped. The government raises two main policy points: that (1) allowing courts jurisdiction would give them too much power in foreign affairs, and (2) the detainees can get enough protection from the legislature and the executive branch.

The foreign affairs argument is the most compelling. Time and time again the Court has said that the executive is at its greater power when dealing with matters of national security. However, that right is not absolute, as we saw in the Pentagon Papers case. These claims seem very meritless; that is, if a court did hear them, it is unclear what law at all the detainees could point to that would grant them relief. They have no Geneva Conventions rights, since they were not fighting lawfully (wearing recognized uniforms, acting under the authority of a soveriegn state, etc.) Moreover, since they are not US citizens, and are not on US soil (this is the key part), they have no constitutional criminal procedure protections. And, it appears that the government is complying with SUBSTANTIVE (but not procedural) human rights standards (food, sunlight, religious activity, cleanliness, health care, etc.) Therefore, since Rasul and his folk are extremely unlikely to ever be granted relief, the government seems to have nothing to lose national security wise by having the cases heard. The main fear is that something important will slip out in court proceedings. But federal courts have special procedures to deal with classified evidence. The gov't prosecutes espionage cases dealing with highly sensitive material all the time.

The second policy point the government makes seems underdeveloped. The AG claims that the legislature and executive are in a position to protect the rights of detainees. Any court, even the most conservative one, should balk at this kind of argument. Courts have traditionally acted as a countermajoritarian influence, against both liberal and conservative popular action.

These are weak policy arguments, and I think the government would have done better to concentrate on separation of powers arguments. Bringing the argument down to the specific crisis level plays into the hands of the other side. By staying above the frey and simply emphasizing the executive's traditional role of exclusively dealing with the details of war prosecution, the government may have had a more persuasive argument.

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Today's DAILY BRUIN gives front page coverage with a fair and balanced assessment of the law school veterans Amicus Brief in support of the Solomon Amendment, which I told you about here and here.

UPDATE: We also received coverage at the blawg JURIST, with a post here.

Re: the upcoming hearing in the Air Force fratricide court martial I told you about here, here, and here, today word comes from the AP via KTBS 3 TV, Shreveport, LA, that the Air Force Court of Criminal Appeals has granted an indefinite stay on the preliminary hearing. No word yet on why the stay was granted, or if there will be a preliminary hearing before the April 5 scheduled trial date. Stay tuned...

UPDATE #1: Upon further research, I found the grounds for the Appeals Court stay. According to the Toronto Star, the defense team of Maj. Schmidt requested a delay because the government refused to hand over classified data to them. They are seeking evidence from the Air Force AWAC Airborne Radar system which tracked the friendly fire incident from miles away. They are hoping that they might find something exculpatory on the radar system. Apparently, the Air Force Court of Criminal Appeals bought their argument for now. NOTE: under the Rules for Court Martial, an accused or the government may request an interlocutory appeal for certain assigned errors of procedure. I will try to get a copy of the order.

Friday's Shreveport Times (Louisiana) runs a story that exposes the current fratricide court-martial of Air Force Major Harry Schmidt. Apparently, the very same Air Force General who is pro(per?)secuting Maj. Schmidt may be turning a blind eye to a fratricide incident of even greater proportions:

On June 22, a Barksdale B-52 bomber taking part in a joint services exercise in Djibouti, a nation in the Horn of Africa, dropped a string of nine 750-pound M117 unguided bombs that landed not on target, but rather on an observation post nearly a mile away.

One Marine, helicopter pilot Capt. Seth Michaud of Hudson, Mass., was killed. Eight other U.S. military personnel - seven Marines and a Navy lieutenant - were critically or seriously injured and two CH-53E helicopters were destroyed.

An investigative report, issued in January under the authority of Air Force Brig. Gen. Gilmary Hostage, bluntly states the accident was due to crew error, though with "no evidence to support any willful intent on their part.

Maj. Schmidt is being charged with the manslaughter of Canadian troops who he engaged thinking they were Taliban forces in Afghanistan. The B-52 incident hasn't escaped Maj. Schmidt's lawyers:

Dissimilarities in the ways the friendly fire crews are being treated concern Charles Gittins, Schmidt's civilian attorney. Gittins said the differences are "explainable only as a matter of politics. To date they are the only names of any pilots released who have been involved in at least 17 certain incidents of friendly fire resulting in deaths as a result of aircraft engagements."

He said the B-52 incident that resulted in a loss of life also warrants closer and public scrutiny.

"The Djibouti accident was a training mission - those guys had all day to get it right," Gittins said. "Major Schmidt was flying a combat mission in a combat zone and observed what clearly appeared to be rocket propelled munitions directed at his flight lead. He didn't have the luxury of a crew of five to make a decision. He didn't have an instructor standing over his shoulder watching him (as in the B-52) and, he got no help from the theater command and control system.

"The injustice of charging Major Schmidt with a crime fairly slaps one in the face when compared to the B-52 accident, from a unit 'owned' by the same convening authority."

ANALYSIS: This will be a big issue in the news in the coming weeks. I fully expect someone like Dateline or 60 Minutes to revisit the B-52 incident. Legally speaking, it's problematic that someone under the pressure of combat action gets charged with manslaughter while another pilot causing a death in a sterile training environment is being treated with kid gloves. Why is Maj. Schmidt being singled out? As I told you here, it's because the National Command Authority needs to keep good relations with Canada, whose press is having a field day with the story. Unlawful command influence, the tendency for commanders to put their thumbs on the scales of justice and illegal under Article 37 and Article 98 of the Uniform Code of Military Justice, will be a huge issue in the litigation. Any perceived difference in treatment between the B-52 case and the Schmidt case will give greater grist for the defense's motion mill. Go-Pills will also be another big defense; Schimdt was under the influence of Air Force-prescribed amphetamines at the time of the incident. Pre-trial motions will be heard TOMORROW, March 1.