Monday, April 28, 2014

The Future of AUMF and Guantanamo Detainees: Did Justice Breyer Just Push the Argument Forward?

This article first appeared on The Epoch Times    

     The president’s authority in war-making power and detention of enemy combatants has been a hotly contested issue for some time and many lawmakers are looking to either repeal or revise (not renew) the Authorization to Use Military Force (AUMF).  The drawdown of troops in Afghanistan raises questions over the applicability of AUMF and its sunset.  There are currently 150 Guantanamo prison detainees in limbo with no charges filed and no trials set to take place any time soon.

     Justice Stephen Breyer, in a short opinion at the end of the April 18 order list, weighed-in on the issue of AUMF’s applicability and the potential future of detainees in Guantanamo.  The Supreme Court denied to hear the case Abdul al Qader Ahmed Hussain v Obama for what Breyer described as the Court not directly addressing, "whether the AUMF authorizes, and the Constitution permits, detention on the basis that an individual was part of al Qaeda, or part of the Taliban, but was not 'engaged in an armed conflict against the United States' in Afghanistan prior to his capture. Nor have we considered whether, assuming detention on these bases is permissible, either the AUMF or the Constitution limits the duration of detention."

     Furthermore, Breyer insinuates that since Hussain's lawyers have not addressed the right questions prompting the Court to deny certiorari, his lawyers could conceivably start over, which effectively provides a legitimate argument for habeas corpus in federal court - a bombshell in the Guantanamo debate.   Breyer points to a plurality opinion delivered by former Justice Sandra Day O'Connor in which she indicates that the AUMF allows the president to detain enemy combatants but distinguishes what or who an enemy combatant is.  Justice O'Connor defined an enemy combatant as "an individual who...was part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there."  Mr. Hussain was captured at the age of 18 and was merely a member of a terrorist organization, he was not on a battlefield "engaged in an armed conflict" with US soldiers. This begs the question, is his detention under AUMF lawful?

     At an event sponsored by the Council on Foreign Relations last week, experts gathered to discuss the topic of the Guantanamo detainees and how to proceed with their cases.  Among the viable options for detainees are trials in domestic courts on American soil, or trials by military tribunal.  Marc A. Thiessen, Fellow at American Enterprise Institute and Former Chief Speechwriter to President George W. Bush, believes military tribunals are the best option because trying someone such as Khalid Sheikh Mohammed, the 9/11 mastermind, in open court would provide a "propaganda tool" or a soapbox for which to recruit new members.  Others on the panel, such as Phillip Carter, Senior Fellow at the Center for a New American Security and Former Deputy Assistant Secretary of Defense for Detainee Policy, disagree and believe a domestic trial will be a propaganda event for the United States and serve as a victory lap of sorts over terrorists and their heinous acts.  Mr. Carter also asserted that a domestic court is better than a military tribunal (which seems to "stop every three months at any procedural obstacle") because domestic trials can provide speedier justice, which can put those like Mohammed away in a maximum security prison "never to be heard from again."

     The United States government is in a serious predicament as to the fate of the detainees in Guantanamo.  As panelists at the Council on Foreign Relations discussed, continued detention hurts the United States' credibility because these prisoners are in a state of legal limbo by being held without ever having been charged.  The view of "armed conflict" would appear to be subjective as Mr. Carter insists.  Al-Qaeda today is not the al-Qaeda of 2001, which requires an adjustment in the rules of engagement and legal definition.  

     The other side of the coin is whether these detainees are in fact militants or enemy combatants. As Mr. Theiessen opines, the US government and military does not want to debate law enforcement procedure versus military practice when capturing suspected targets.  In other words, to the behest of European nations and some in the United States who wish to try Guantanamo prisoners in domestic courts, Mr. Theiessen provides the argument that Special Forces, when conducting raids to capture militants or intelligence, cannot be worried about securing a crime scene as is customary with domestic law enforcement practices.  Rather, they are interested in first, securing their target without collateral damage to civilians or themselves, and second, gathering intelligence to be turned around as quickly as possible as to not tip-off other members of terrorist organizations that their intelligence has been compromised.

     Justice Breyer's brief opinion may open the doors for habeas corpus writs to be granted for those being detained at Guantanamo.  However, the New York Times, in response to the Supreme Court's denial of seven habeas corpus cases in 2012, wrote, "it is devastatingly clear that the Roberts court has no interest in ensuring meaningful habeas review for foreign prisoners."  In fact, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) passed in 1996 made it far more difficult for domestic habeas corpus to be granted, never mind for foreign "combatants."  Cornell University Law Professor Michael Dorf's description of these new hurdles established by AEDPA is that, "federal courts no longer determine whether state courts correctly rejected a habeas petitioner’s federal claims; they only grant relief if the state courts applied federal law unreasonably—a deferential standard."  Dorf went on to say of Guantanamo detention cases that the Court "rebuffed" Bush administration polices and "Justices may believe that they have vindicated habeas, and thus, they may have less energy or inclination left to fight for habeas as a mechanism for collateral review of state convictions."  

     When applying AEDPA, cases on the merits are not considered, which places serious restrictions on federal judicial oversight.  Ambiguity surrounding relevant case law and adjudication provide a "gaping hole" in how certain cases under AEDPA are examined.  Just last week, by a 6-3 decision, the Supreme Court denied habeas corpus to an individual under AEDPA, which further demonstrates how difficult it can be to grant habeas corpus for some individuals.  Moreover, politicians have concluded, as Mr. Dorf posits, that there "is no political angle for them in supporting civil liberties for criminal defendants" in an attempt to be tough on crime and terrorism.  Along with greater barriers for habeas petitions, it appears the Guantanamo issue is no closer to being resolved than before.  

     The next step for the detainees and Mr. Hussain is to reapply, catering to the standards Justice Breyer outlined in his opinion.  Additionally, lawmakers can more clearly define the scope of this troubling conflict by either amending or repealing AUMF.  Legislation in Congress to amend or address AUMF includes access to Article III courts for terrorists apprehended through "AUMF authority" as well as cutting funding for "the use of force pursuant to the Authorization for Use of Military Force" after December 31, 2014 "when the last American combat troops will rotate out of Afghanistan and the responsibility for security will have passed to the Afghan people."  Additionally, Senator Tim Kaine (D-VA) has proposed legislation to repeal the War Powers Resolution and to more clearly define presidential and congressional authority in war making actions.  Clarity is of the utmost importance and Congress can play a large role in the debate if they are willing.                      

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