Peter Margulies on S. 3707's Staying of Challenges to Military Commissions

By Benjamin Wittes
Sunday, September 19, 2010, 6:35 AM

Peter Margulies, author of Law’s Detour: Justice Displaced in the Bush Administration, who previously offered these comments and these comments on S. 3707, weighs in on the bill’s mandatory stays to habeas challenges to military commission proceedings. He defends the provision, which Steve Vladeck criticizes here. Once again, I have added some links:

While, as I’ve suggested previously, the Graham habeas reform bill could use some tweaking, critics like Steve Vladeck have greatly exaggerated the conflict between case law and the bill’s provisions on at least one important issue: the imposition in section (f)(1) of a mandatory stay of habeas petitions by detainees challenging pending military commission proceedings.  In exaggerating this conflict, Steve makes an even more fundamental mistake: He discounts the careful balancing at the heart of  the “equitable principles” which the Supreme Court has held govern habeas.  See Munaf v. Geren, 553 U.S. 674, 128 S. Ct. 2207, 2220 (2008); cf. Boumediene v. Bush, 553 U.S. 723, 128 S. Ct. 2229, 2267 (2008) (habeas is “at its core, an equitable remedy”) (citation omitted).

Justice Douglas noted decades ago that equity is not, as Steve would have it, a one-way street that petitioners enjoy while respondents watch helplessly from the sidelines.  Rather, it serves as “the instrument of… adjustment and reconciliation” between competing claims.  See Hecht Co. v. Bowles, 321 U.S. 321, 329-30 (1944)Hecht reiterates the time-honored equitable principle that relief such as an injunction or stay is not granted mechanically on a petitioner’s mere say-so, but is an extraordinary remedy available only when legal remedies are inadequate.

The Court has viewed efforts to obtain federal injunctions against pending criminal proceedings in the same light.  Defendants who wish to delay their accountability would have every incentive to seek injunctions against pending proceedings.  The resulting equitable free-for-all would gradually erode the rule of law, miring prosecutions in legal arguments while evidence grew stale.  The resulting impasse would transform a routine criminal matter into a reprise of the trial of Slobidan Milosevic.  To preclude this drift into impunity, the Court has interpreted equitable principles to require that criminal defendants first make their legal arguments in the court presiding over their trial.  See Younger v. Harris, 401 U.S. 37, 42-44 (1971).  The court must fully and fairly consider a defendant’s claims, which are then subject to appellate review.  In Schlesinger v. Councilman, 420 U.S. 738, 754-55 (1975), the Court extended this framework to military tribunals, citing not only equitable principles but also the comity due Congress’ power under Article I section 8 to “make rules” for the conduct of the armed forces.

In the context of military tribunals, only one factor has tilted the equitable balance in favor of pre-trial habeas: a substantial question about Congress’ authorization of military proceedings.  In an early case, Kurtz v. Moffit, 115 U.S. 487 (1885), the Court granted a pre-trial habeas petition by an alleged deserter who had been arrested by local peace officers, where Congress had not expressly granted local law enforcement officials this authority.  As readers doubtless know and Steve notes in The Laws of War as a Constitutional Limit on Military Jurisdiction, _. J. Nat’l Security L. & Pol’y _ (2010), the Supreme Court in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), granted a pre-trial habeas petition in which a Guantanamo detainee challenged his trial before a military commission that President Bush had established without Congress’ authorization.  However, the cases addressed by S. 3707 are different.

Post-Boumediene case law has respected the equitable balancing that favors stays of habeas petitions pending exhaustion of military tribunal remedies.  In Hamdan v. Gates, 565 F. Supp. 2d 130, 137 (D.D.C. 2008), Judge Robertson, who has ruled against both the Bush and Obama administrations in detainee cases, stayed habeas proceedings pending the petitioner’s military trial.  Judge Robertson noted that the military commission proceedings authorized by Congress after the Supreme Court’s Hamdan decision featured established indicia of fairness, granting defendants access to evidence and providing for the suppression of coerced statements.  A military commission subsequently convicted Hamdan on certain charges but acquitted him of others, in a trial that Hamdan’s zealous military attorney, Charles Swift (co-counsel with current Acting Solicitor General Neal Katyal), told an ABA Conference in 2008 was the functional equivalent of a court-martial under the Uniform Code of Military Justice.  Hamdan served a short sentence and was released a few months later.  Judge Bates, whose decision granting detainees at Afghanistan’s Bagram Air Base access to habeas was reversed by the D.C. Circuit, cited the same principles in a stay of habeas proceedings in Khadr v. Obama, 2010 U.S. Dist. Lexis 72565 (D.D.C. July 20, 2010).

Summing up, S. 3707’s section (f) does not work a change in the case law.  Indeed, it only codifies the equitable balance created by precedent: When Congress expressly authorizes a military tribunal that features procedures that are facially fair, the rule of law and appropriate deference for Congress’ Article I authority require a defendant to make legal arguments before that tribunal, rather than seeking preliminary habeas relief in the federal courts.  This includes arguments that the charges against a defendant are not properly triable before a military commission.  As long as defendants have access to judicial review, Congress has not relegated detainees to an inadequate remedy that requires equity’s intervention.  Of course, as Jack has suggested in a recent op-ed, government officials may still decide that a military commission trial lacks global legitimacy.  However, officials should make this sober choice without the free-for-all triggered by pre-trial habeas hearings.