Suspending Habeas Corpus at Guantanamo and Beyond
*Cross-posted from Balkinization
One of the most significant aspects of the
Military Commissions Act of 2006 (“MCA”) is its repeal of habeas corpus
jurisdiction. Section 7 of the MCA eliminates habeas for an “alien
detained by the United States who has been determined by the United
States to have been properly detained as an enemy combatant or is
awaiting such determination.” Does this provision violate the
Constitution’s Suspension Clause?
Challenges
to the MCA’s habeas repeal will be addressed in the Guantánamo detainee
litigation, where two lead cases are pending before the D.C. Circuit, Al Odah v. United States and Boumediene v. Bush. In Al Odah (captioned in the district court as In re Guantanamo Detainee Litigation),
Judge Joyce Hens Green invalidated the Combatant Status Review Tribunal
(“CSRT”), established to determine whether Guantánamo detainees were
enemy combatants.Judge Green found that the
Guantánamo detainees were protected by the Fifth Amendment’s Due
Process Clause and that the CSRT violated due process by denying them
access to counsel, preventing them from seeing the government’s
evidence, and permitting evidence gained by torture.In Boumediene,by
contrast, Judge Leon concluded that Guantánamo detainees had no
cognizable rights, notwithstanding the Supreme Court’s ruling in Rasul v. Bush, 542 U.S. 466 (2004), that the detainees could challenge their confinement by habeas corpus.
As a threshold matter, precedent supports the conclusion that Guantánamo detainees have a constitutional right to habeas.In Ex parte Bollman,
8 U.S. (4 Cranch) 75 (1807), Chief Justice Marshall suggested that even
though judges must have a statutory basis to issue the writ, the
Suspension Clause obligates Congress to establish habeas jurisdiction,
as Congress did in the Judiciary Act of 1789. The Court revisited Marshall’s statement in INS v. St. Cyr, 533 U.S. 289 (2001), suggesting that statutory habeas jurisdiction is constitutionally compelled by the Suspension Clause.
But even so, do aliens detained at Guantánamo fall within the Suspension Clause’s protections? Rasul suggests they do and informs the constitutional analysis in several ways.
First, Rasul drew
upon history, explaining that the common law writ remained available to
individuals in territory under the control of the English crown. Viewed in that light, Guantánamo is an easy case given more than a century of exclusive U.S. jurisdiction and control. Rasul’shistorical analysis is of constitutional salience because, as St. Cyr instructs, the Suspension Clause at least protects the common law writ as it existed in 1789.And, in 1789, the writ would have run to an enclave like Guantánamo.
Second, Rasul distinguished Johnson v. Eisentrager, 339 U.S. 763 (1950), in two ways.For purposes of the habeas statute, the Court concluded that under Braden v. 30th Judicial Circuit of Ky., 410 U.S. 484 (1973),a habeas petitioner does not need to be within the district court’s territorial jurisdiction (as he did at the time Eisentrager was decided).Hence,
the Guantánamo detainees could invoke a district court’s jurisdiction
under the plain terms of the habeas statute. The Court, however, also
distinguished Eisentrager because, among other things, the petitioners there were conceded enemy aliens who had been tried and convicted by a military tribunal, not held indefinitely without trial.For this reason Eisentrager, as Steven Vladeck and others have pointed out,may be read as a decision on the merits.And, on the merits, Eisentrager is a very different case.
Finally,
appellate review of a CSRT finding under last year’s Detainee Treatment
Act (“DTA”) does not alleviate Suspension Clause concerns because it
fails to provide a constitutionally adequate substitute for habeas
under Swain v. Pressley, 430 U.S. 372 (1977).As St. Cyr makes clear,the
DTA’s scope of review must encompass legal and constitutional claims,
including the lawfulness of the administration’s designation of a
prisoner as an “unlawful enemy combatant” and whether the CSRT violates
due process. Yet, the statute, as written, arguably precludes that review, asking only whether “the use” of CSRT procedures is unlawful. But
even if the DTA permitted that review, it would still fall short of the
Suspension Clause’s requirement by foreclosing any meaningful
examination of the factual basis for a prisoner’s detention.
As I previously argued for amici
in the D.C. Circuit, habeas review traditionally guaranteed a searching
inquiry into factual allegations in cases of executive detention
without trial (as opposed to the narrower review in post-conviction
cases, where the prisoner was afforded due process at trial).These common law protections were later codified in the federal habeas statute, 28 U.S.C. § 2241 et seq., a point noted by both Justice O’Connor in Hamdi v. Rumsfeld, 542 U.S. 507 (2004),and Judge Muskasey in Padilla ex rel. Newman v. Bush, 233
F. Supp. 2d 534 (S.D.N.Y. 2002), who saw the statute as providing a
skeletal outline of due process independent from the Fifth Amendment.Indeed,
it was when the administration recognized that the D.C. Circuit might
actually force it defend its detentions in district court on habeas
(including by entertaining allegations that evidence was obtained under
duress), that it engineered passage of the DTA.Call it legislation as cover-up. In
short, DTA review by the D.C. Circuit of a CSRT finding would not
provide what common law habeas provided, but instead sanction
indefinite detention without an opportunity to submit evidence or rebut
the government’s allegations before a neutral decisionmaker. The CSRT’s basic inadequacy, coupled with the DTA’s narrow scope of review, does not satisfy the constitutional core of habeas.
A
habeas case filed on the eve of the MCA’s passage challenging
detentions at Bagram Air Base in Afghanistan will also raise issues
important Suspension Clause issues.To be sure, Bagram does not possess the same century-long exclusive U.S. jurisdiction and control that makes Guantánamo unique.On
the other hand, there is no alternative review scheme for detentions at
Bagram since the DTA’s review mechanism applies only to detainees at
Guantánamo. Thus, Bagram will force courts to confront the legal black
hole they faced at Guantanamo before Rasul.It
will also highlight the perverse incentives created by a jurisprudence
that provides for review of detentions at Guantánamo but denies it at
other off-shore prisons, allowing the administration to transfer
prisoners to avoid the reach of the writ, exactly what habeas
traditionally sought to prevent.
Jonathan Hafetz: "Suspending Habeas Corpus at Guantanamo and Beyond" (pdf)