The Volokh Conspiracy

The opinion rests on the assumption (I call it this because it is not explained in any length), that the Guantanamo Bay facility is beyond the jurisdiction of any court of the United States, because the U.S. leases the land from Cuba.
Interestingly, the Government also argues that Cuba has no jurisdiction at Guantanamo Bay, but this assertion is not addressed in the opinion (that I noticed, please correct me if I am wrong).

FYI, here is Lyle Denniston's report at SCOTUSblog: Circuit Court orders end to detainee cases:

The D.C. Circuit Court on Tuesday ruled that Congress had taken away the federal courts' authority to hear habeas challenges to the detention of foreign nationals at Guantanamo Bay, Cuba. The Court also ruled that this did not amount to an unconstitutional suspension of the writ of habeas corpus. The Court was divided 2-1 on the constitutional issue in its 59-page decision ...

The dissent's insistence that the Suspension Clause is "a limitation on the powers of Congress" and does not confer "an individual right" seems artificial.

Neil, the majority opinion at pages 20-21 discusses the juridical status of Gitmo and cites case law and a statutory provision to support the conclusion that Cuba, not the United States, has sovereignty there. Right or wrong, the majority does address the question directly.

It looks like the majority is trying to re-instate its opinion in Rasul, under the guise of the Suspension Clause. The SCt over-ruled the D.C. Circuit in Rasul, holding that the writ extends wherever the Court has jurisdiction over the jailers.

Now, the DC Circuit again says that the writ never extended as far as an alien on land outside the US leased from a foreign government. Somehow, this conclusion is now wrapped up with the Suspension clause, although the court only analyzes cases that have nothing to do with the Suspension clause.

If two faces on the SCt had not changed in the interim, I would be expecting another reversal. Now, I hope the Court either denies cert, or comes up with some way to affirm on grounds that at least make a lick of sense.

My favorite passage in this case was where the court affirmed that it was absolutely certain that, in 1789, the writ would not have extended to an enemy on foreign territory that the government had leased from a foreign country. What it doesn't mention, is how anyone in 1789 could have imagined leasing a base like Guantonomo. Under the originalist ideas they are trying to pursue, the base itself was unthinkable.

The decision turns on two points: (1) aliens in territory not subject to U.S. "sovereignty" have no constitutional right to habeas corpus, and (2) that Congress withdrew any statutory right they may have had (and that Hamden ruled they did have). Both points seem well supported in the opinion, and the dissent concedes the second.

As a prior commenter notes, there is ample authority that the U.S., whatever its control over the site at Gitmo, has no "sovereignty" over it. As the majority said, and as prior cases have said, to rule otherwise would suggest that the U.S. has sovereignty over various areas controlled on the battlefield, and that would lead to absurd results, including insuring everyone in the area a variety of Constitutional rights, such as free speech, "reasonable" searches and seizures, etc. Not a good interpretation if the nation is ever to be able to wage war!

The dissent faces two problems.

First, Judge Rodgers seems to be saying that once Congress granted statutory habeas corpus, the Suspension Clause prevents Congress from revoking statutory habeas corpus. This is obviously nonsensical; if Congress has the power to create a law, it has the power to revoke or amend a law. DC District Court Judge Robertson, in the most recent Hamdan case, came to the same conclusion when he found that the MCA was not a suspension of the writ of habeas corpus because it did not reach constitutional habeas petitions (i.e. those within the historical reach of the writ of habeas corpus), only statutory habeas petitions.

Second, she concludes that the MCA is "void" and that it "has no effect on the jurisdiction of the federal courts to consider these petitions and their related appeals". But then she must somehow make the argument that either the language of sec. 2241 as it existed before the MCA reaches Guantanamo Bay or that the Guantanamo Bay detainees would have come within the historic reach of the Writ. Rasul makes clear that the pre-MCA 2241 reaches Guantanamo Bay detainees through their next-friends, so she's fine there. But is not so clear that the historic, common-law Writ would reach enemy aliens.

John, since when is GITMO a battlefield?

The minute someone is renditioned (and certainly once they're detained), they're pretty much away from the action.

Why are the 9/11 attacks not an "invasion" that permits suspension of even the constitutional writ?

Duffy Pratt--

I think the "Suspension" that can only occur during rebellion or invasion is of the Constitutional right to habeas. Thus, it was important to determine whether these guys had such a right, and the court said they didn't--they only had the statutory right which Congress repealed. Accordingly, the Suspension clause was not violated.

rothmatisseko--

GITMO is not a battlefield, but the sovereignty issue is the same for it as for a battlefield, or at least very similar--either the U.S. has sovereignty over foreign lands that it physically controls, or it doesn't. The court held, as others have in the past, that that is not enough for sovereignty to attach.

Yes, the constitutional habeus right turns on the unlawful combatants being held in Cuba. If they were in the US they would have the constitutional habeus right. It seems that was why they were transferred to Gitmo in the first place.

One would think the focus of the writ would be on the executive's control over the individual, not the place where the executive choose to exercise that control over the individual - otherwise it means nothing.

One would think the focus of the writ would be on the executive's control over the individual, not the place where the executive choose to exercise that control over the individual - otherwise it means nothing.

Yes. One would think that. And to this non-lawyer there is a considerable difference between territory controlled by force during combat and territory controlled under a long-standing lease.

Does the Constitution really permit the establishment of a "habeas-free zone" in any place outside the US, regardless of how much real control the US has over it?

The question about whether people on a battlefield seems entirely misplaced, because by definition a battlefield is " an area of contention, conflict, or hostile opposition" (dictionary.com). Sovereignty is defined as "supreme and independent power or authority in government as possessed or claimed by a state or community".

Thus, if sovereignty is the power claimed by a state or a community over a specific area, and a battleground is an area of contention, it would thus be impossible to claim sovereignty over a battlefield. Thus, in the battlefield, there would be no claim for constitutional rights.

However, the large point is to where they are now. Not in a battlefield, but in a place where the U.S. claims a "supreme and independent power or authority."

Anyone want to justify the federal lease of a permanent military base on foreign soil according to a 1789 understanding of the Constitution?

Sure. Article II, Section 2.

"He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,"

Do POWs have rights? Well, lawful ones do. We give them those rights because we want their superiors to give those same rights to our POWs.

So, do their superiors treat our POWs as if the POWs have rights? No. In fact, they video murdering them, and release the videos (two Geneva Convention violations in one!).

Do we punish them from mistreating our POWs? No. In fact, you people seem to think it's just fine for them to murder our POWs, and that we should reward them for this by giving their POWs rights no POWs have ever had before. It must be amazing to live inside your heads.

So, I'm curious. You think that enemy combatants, captured outside the bounds ot the US, should nevertheless have full US rights. Does that include 1st Amendment rights? Do they have the right to communicate with their terrorist allies overseas? You know, pass intelligence to them?

How about 2nd Amendment rights? Do they have the right to keep and bear arms?

How about other Geneva Convention rights? Does the US government have to pay them, like it would with normal POWs?

IOW, do you people ever bother to think about what you're saying, or is it just a matter of spouting off whatever you think will hurt Republicans, and / or the US, the most?

Mark:

You have good instincts. The Habeas Corpus Act of 1679 specifically prevented the transfer of prisoners outside of the Kingdom in order to avoid habeas relief.

It did not. It prohibited the transfer of "inhabitant or resident of this kingdom of England, dominion of Wales, or town of Berwick upon Tweed," overseas. It didn't prohibit the transfer of foreigners already overseas.

Moreover, I don't see how this supports the idea that it applies to the executive rather than the prisoner at all, given that it prohibited the transfer of people to places such as Scotland, which (though it had its own Parliament) was under the Monarchy.

Nieporent:

As others have noted elsewhere, the Court's dicta in Rasul, while limited to S.2282, were consistent, as the dissent's cite indicates, with the idea of a Constitutionally based right of habeas, independent of any Congressional determination. The fact that the Court already stated, for statutory purposes or not, that the claim of habeas for the Gitmo detainees was consistent with the historical reach of habeas , seems pretty dispositive.

As for the Article I claim, I think the point is that the limitation imposed by the Suspension Clause isn't limiting Congress (or the States or the Federal Govt) from legislation or acts vis-a-vis individual rights, but vis-a-vis the powers of the Supreme Court of the United States. The problem presented by the dissent isn't that Congress is purporting to deny habeas rights to the detainees; it's that Congress is purporting to deny habeas jurisdiction (which exists in the Constitution, independent of any Congressional powers or legislation purporting to enable or deny it) to the Supreme Court. The Constitutional historical discussion engaged in by the dissent appears to effectively portray that point, that habeas is about Constitutional powers first and foremost, specifically the ability of the Court to hear habeas petitions, and only ancillarily about individual rights. And that, my flippant friend, is why the Court will knock it down overwhelmingly. Because the dissent cleverly (and accurately) portrayed this legislation as a Congressional imposition on the Court's Constitutionally granted powers, and this Court, among both its left-leaning and right-leaning members (with the exception of Thomas, and possibly Alito) has been very consistent in jealously guarding its powers.

Also, in re your comment concering Art II's treaty provision, that still doesn't answer the gentleman (or woman)'s question. Art II's treaty provision still doesn't anticipate a permanent quasi-occupation of a permanently leased territory, with complete sovereign power by the US but deemed "non-sovereign" for selective purposes by Congress, and occupied exclusively by the military, for any number of reasons including that in 1789 the idea of a standing army, let alone a standing army utilizing a permanent base on foreign soil, was unthinkable.

The fact that the US would consider any annexation or invasion of Guantanamo to be an act of war, I think, is determinative of US sovereignty over Gitmo.

The fact that the US would consider any annexation or invasion of Guantanamo to be an act of war, I think, is determinative of US sovereignty over Gitmo.

Why does that follow? An attack on any U.S. military base would be an act of war against the United States, but that doesn't mean that the U.S. has asserted sovereignty over Italy (despite the presence of Aviano AFB), Germany (despite Ramstein AFB), or Japan (Misawa AFB). Similarly, the U.S. would view an attack on one of its aircraft carriers on the high seas to be an act of war, but it doesn't follow that the U.S. considers the high seas part of its sovereign territory.

Bob from Ohio,

Because all the invaders were killed over five years ago.

This is from Rasul:

Application of the habeas statute to persons detained at the base is consistent with the historical reach of the writ of habeas corpus. At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm,11 as well as the claims of persons detained in the so-called “exempt jurisdictions,” where ordinary writs did not run,12 and all other dominions under the sovereign’s control.13 As Lord Mansfield wrote in 1759, even if a territory was “no part of the realm,” there was “no doubt” as to the court’s power to issue writs of habeas corpus if the territory was “under the subjection of the Crown.” King v. Cowle, 2 Burr. 834, 854—855, 97 Eng. Rep. 587, 598—599 (K. B.). Later cases confirmed that the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of “the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown.” Ex parte Mwenya, [1960] 1 Q. B. 241, 303 (C. A.) (Lord Evershed, M. R.).

The D.C. Circuit seems to have ignored this gloss on the history of the writ when they concluded that historically it would not have applied to this situation. Like I said, it looks like the D.C. Circuit disagrees with Stevens on his view of this history, and is now betting that Steven's view will be in the minority given the new makeup of the court.

It did not. It prohibited the transfer of "inhabitant or resident of this kingdom of England, dominion of Wales, or town of Berwick upon Tweed," overseas. It didn't prohibit the transfer of foreigners already overseas.

Perhaps my point wasn't clear. The original post suggested that the point of the Writ must be to command the holder of the person, not the place where the prisoner was held. The language of the 1679 statute supports that interpretation.

It's quite true that the statute originally applied only to citizens. Subsequent case authority (prior to 1789) extended the availability of the writ to aliens. There seems to be no disagreement that aliens held in the US can use the Writ. Thus, the only remaining question is whether aliens can be kept outside of the "US" for the sole purpose of avoiding the Writ. That seems dubious in light of the intent of the 1679 statute.

Ross, 140 U.S. 453 (1891)

"By the constitution a government is ordained and established 'for the United States of America,' and not for countries outside of their limits. ... The constitution can have no operation in another country.

This decision has been superceded, at least to some degre, by Reid v. Covert.

"You have good instincts. The Habeas Corpus Act of 1679 specifically prevented the transfer of prisoners outside of the Kingdom in order to avoid habeas relief."

The HCA of 1679 refers not to generic "prisoners" but rather to the "King's subjects", a distinction those who, for reasons known only to themselves, think POWs (much less enemy combatants) should have habeas rights, never cease to blur. There is no hint anywhere that the historical Writ would apply to combatants, legal or otherwise, and the founders would have found such a notion laughable.

Oren,

First of all, spending bills (appropriations) can be filibustered. Budget bills (revenue raising) cannot. Second, although the budget bills cannot be filibustered, they are subject to a point of order with respect to non-germane amendments. A point of order takes 60 votes to break. Certainly, a habeas provision is not germane to a budget bill.

Third, the budgetary rules were designed by Mike Mansfield and Bob Byrd, not by Republicans.

Rattan,

Mediocrities on teh Supreme Court?! Really? This Court possibly has the most intellectual firepower of any Court in the Republic's history. Scalia, Alito, Roberts, Stevens, Ginsburg, Thomas and Breyer are each brilliant. (Souter and Kennedy not so much). To suggest that they are mediocre is simply bizarre.

The rest of the argument is equally bizarre. You admit that Congress can add to the writ, but then claim that they cannot take back those additions. That is rather strange. Second, POWs have never been required to have a "public trial." They can be held simply because they are POWs.

As for Ann Frank, I do not get your point at all. Yes, US (together with the rest of the "civilized" world) acted despicably in refusing to offer any help to those seeking to escape the Nazis. But what's your point? Are you suggesting that Supreme Court should have ordered issuance of visas? And if you are suggesting it, on what possible constitutional basis?

I think the prospects for getting a veto-proof amendment to the MCA are not high.

Another speculative legislative possibility, which would originate in Chairman Murtha's House Appropriations subcommittee, is language that would force the Guantanamo facility to be shut down by means of funding restrictions. That might not be good news for the inhabitants, who might then find themselves sent somewhere with even more tenuous connections to U.S. courts.

The HCA of 1679 refers not to generic "prisoners" but rather to the "King's subjects", a distinction those who, for reasons known only to themselves, think POWs (much less enemy combatants) should have habeas rights, never cease to blur.

That was NOT my point. I understand that. I said so specifically. The point is this: Parliament had learned from sad experience that the Executive would try any dodge to avoid the writ of habeas corpus. It wrote a provision into the Act of 1679 precisely to put an end to those dodges. Assuming the Writ was so understood in 1789, and further assuming that the understanding in 1789 constitutes an irreducible "core" meaning of the Writ, then holding the prisoners in Gitmo rather than the US might well be seen as just such a dodge as Parliament intended to prohibit.

There is no hint anywhere that the historical Writ would apply to combatants, legal or otherwise, and the founders would have found such a notion laughable.

This is simply false, as both the majority and dissent make clear.

jrose:

The majority in Rasul focused only on statutory habeas in distinguishing Eisentrager. But even if we throw that distinction out in light of the MCA, doesn't that leave Kennedy's concurrence - which distinguished Eisentrager because "Guantanamo Bay is in every practical respect a United States territory" - as likely to gain 5 votes (unless there is someone who believes the District Court's power to hear an appeal as authorized in the MCA meets the habeas requirement)?

For SCOTUS to overrule the D.C. Circuit in this case would require them to find that the statutory reach of sec. 2241 (that it found in Rasul extends to Gitmo) turns out to be irrelevant. Whadaya know, the detainees had a constitutional guarantee to the Writ all along. This would be a stretch even for this court notwithstanding its penchant for discovering hitherto unknown "rights" buried like so much pirate's treasure in the soil of the Constitution.

Between Rasul, Hamdan and Hamdi this court has made an absolutely undecipherable shitpile of jurisprudence, which is the predictable outcome when the majority tries to find rationalizations for their desired result rather than justification in the rule of law.

For SCOTUS to overrule the D.C. Circuit in this case would require them to find that the statutory reach of sec. 2241 (that it found in Rasul extends to Gitmo) turns out to be irrelevant. Whadaya know, the detainees had a constitutional guarantee to the Writ all along. This would be a stretch even for this court notwithstanding its penchant for discovering hitherto unknown "rights" buried like so much pirate's treasure in the soil of the Constitution.

Of course, it could overturn this case by interpreting the Suspension clause to mean what it says. I realize that would be a shocking turn of events in Constitutional jurisprudence. Does anyone doubt in this case that Congress has tried to suspend the writ in Gitmo? So the Court could say that, under these facts, the amendment of the statute to prevent these detainees from bringing the writ amounts to an unconstitutional suspension. And they could do this without deciding whether every curtailment of the right by statute would also be unconstitutional. Courts do this sort of thing all the time. Its called interpretation.

It seems to me that the question is, may the executive and/or the legislature deliberately and with malice aforethought construct a place which is wholly within the power of the U.S. government, but outside the reach of the Constitution?

That seems to be what the administration wants out of Gitmo: a place that is entirely controlled by the armed might of the U.S., uncontested and effectively irresistible ... but where the normal limits of U.S. power, namely the Constitution including the Bill of Rights, do not apply. It is not intended as an orderly prisoner-of-war camp; it is rather intended as a "state of nature" in which blind force rules; where persons may be held or psychologically destroyed without any recourse to law.

As a strict constructionist, I hold the Constitution to define the limits of the U.S. government's authority. The U.S. government can no more operate outside the Constitution than a computer program can run on thin air. When people claiming to act under government authority act outside of its constitutional limits, they are really acting on their own as private citizens. (Consider: If the President commits a murder and claims that he is acting under color of law, should anyone believe him?) As such, they should be liable personally for offenses such as kidnapping, battery, &c.

That isn't quite how I read the statute. Rather, Article XI of the 1679 Statute appears aimed at preventing the practice of transferring someone from within England, et al. to outside in order to avoid the Writ.

I think it's important to understand the Act in its historical context. The Writ preceded the Act by quite some time. The various Kings, especially the Stuarts, were constantly trying to avoid the Writ. They would transfer prisoners from one county to another, from one Kingdom to another, from Britain to somewhere else. Eventually Parliament cracked down on the gamesmanship and barred all of that. That's why I believe the "reason" of the statute is broader than the specific terms (person in England sent out of England) would suggest. Indeed, the fact that the Writ was later extended to aliens, though the Act says nothing about them, supports the conclusion that it was the purpose of the Act, not its text, which the courts understood as controlling.

What must be remembered here is that the Gitmo detainees were never in the United States. And that was done intentionally to avoid just this problem, that once they have set foot in this country, the Constitutional Writ attaches, regardless of their citizenship.

Yes, in fact I believe John Yoo has stated that this was the reason. The question now is, how should we understand the intent of the Founders to such an attempt in light of their knowledge and experience of Stuart tyranny and the Writ? I think it would be hard to make an originalist argument supporting the Administration in its actions here.

DrGrishka think that if the Congress can add to the writ it can also take away. This is a disingeneous assumption that cannot be deduced from the language used in the Constitution. No such power is granted to the Congress. The Supreme Court presumably can take away what it did not enact by declaring it unconstitutional. However, the notion that Congress can legislate contrary to the Constitutional prohibition on suspending the Writ requires more than just clever wordsmithing. It needs an amendment to the Constitution or a friendly and lazy Supreme Court.

Indeed, there is no support for two or more types of Writ in the Constitution. There is a Writ and it cannot be suspended (except in case of invasion, insurection etc.). The other parts of the Constitution do not, to the best of my limited knowledge, provide a basis for another type of Writ that differs in being amendable to being 'taken back.' This possibility is a legal fiction based on word play aimed at limiting the Constitutional limitation that is uncomfortable for some unfathomable reason.
This is also a result of faulty analysis for absent a reliable way of separating the various types of Writs now being imagined to make them exclusive of the one that cannot be suspended. It stands to reason that Presidential Powers, being the potent stuff they are now, could also include a third type of Writ that could not be suspended by the Congress and only 'taken back' by the Executive. Afterall, the original Writ was created by the executive.

Indeed, this slippery slope of reasoning can lead to various types of slavery that are lawful. Some such form of slavery could then be an option for disposing off the Guantanomo Bay inmates quickly and profitably. The 13th, 14th and 15th amendments do not appear to prohibit sale into slavery of inmates following conviction at a trial, even if it is by a kangaroo court. Given the mockery of a trial now being attempted, it is but a short step to allow cost-effective and profitable disposal of the inmates. Of course, we would not call it slavery and just call it soemthing like an 'involuntary transfer into a liberating work regime in a suitable jurisdiction.' Unreviewable trials would make such outcomes easier.
It is such possibilities that argue against attempts at engaging in secret trials when perfectly fine time tested mechanisms exist for trying such (alleged) criminals. These tried and tested procedures were fine for convicting the Oklahoma City bombers. The major unsaid distinction this time around is xenophobia.
Ann Frank and other Jews' fate was ignored due to such xenophobia. It justified a slow visa train that eventually stopped and had many procedural hurdles. It resulted in a rule of 'law' that sent back a ship full of refugees to their deaths.
Decades from now when the kin of the present incarcerated seek redress for the innocent (and most of those incarcerated were merely swept up on vague suspicions) and insufficiently guilty, we will click our tongues and pretend to be better than we are at this time. I am sure there were some Jews/Gypsies in Europe who were security threats. This, however, was not a proper ground for requiring a security clearance (issued by Nazis) specially from Jewish/Gypsy and other unfortunate potential immigrants despite knowledge of their peculiar predicament.
These unfortunates, however, could not escape their fate because they could provide evidence of their good character only by producing a document from their tormentors together with a fortune. Something similar is true for the Guantanomo prisoners. They cannot escape or avoid solitary confinement (at the very least) if they protest and proclaim their innocence, which innocence is acceptable only if it is certified by their tormentors. If they do not proclaim their innocence then they are guilty --as not charged merely presumed. Their tormentors are increasingly being relieved of the responsibility of presenting proper evidence as was expected even in the case of the Oklahoma City bombers. There are few forums for these people to 'prove' their innocence because of the strange laws being enacted-- with no demonstration of any need for such laws. Instead, it is all about demonstrating legislative or executive privilege with due process and the Bill of Rights lost in the shuffle or in limbo.

This exercise in instituting military tribunals for allegedly non-military personnel (thus, no Genva convention coverage by right) is not even revenge. The whole exercise is far too unfocussed in the routine suffering being meted out for that. The incarcerated have included mere boys and old men. While many were freed after a few years, it is unclear why it took so long to notice children in the population. To further remove oversight from such a system is lunacy at the very least.

Many suicides at the Guantanomo base are a shameful reminder of our low esteem for the way set forth plainly in the Constitution to judge people with provision of the full extent of due process. I fail to see the reason for this low esteem for such a fine document and the constant attempts to restrict its reach.
Unless the Supreme Court reacts with some urgency to provide for due process on review of this case, it will have merely demonstrated its mediocrity--judged by its acts and notwithstanding Rasul. It needs to issue a rebuke to DC Circuit for disregarding the analysis of Rasul as 'dicta' etc. Each day the Supreme Court wastes is an extra day in solitary for far too many people.

But why could Congress not amend or repeal its own statute to take away what it once had granted? Is the theory that the Suspension Clause forbids that action, that there is a constitutional "high water mark" created by statute that can never be rescinded except by invoking suspension?

One interpretation of the clause is that it locked into place the law of the writ as of 1789.

Another is that it acts as a one way ratchet, forever expanding the scope of the writ with Congress' new enactments.

Another possibility is that a common law of the writ would develop in the U.S., and that Congress could not cut that back. Of course, we learned quite a bit later that there is no such federal common law. So, in light of the 1939 understanding of the Constitution, this interpretation of what the founder's meant is untenable.

It's also possible that the writ limits the Federal government's ability to suspend States' issuance of the writ. This would mean that the Contitution originally envisioned State courts issuing writs against Federal jailers. That interpretaion got foreclosed as part of the struggle over the fugitive slave laws before the civil war. The court decided that a state court could not issue a writ against federal jailers who were going to return slaves back to their masters. This view was brought to you by the same court that decided Dred Scott.

Another possibility is that the suspension clause is meant to prohibit Congress from suspending the writ against particular groups of people to advance particular political causes. Under this interpretation, the shorter and less general the limitation on the writ, the more particular the area the suspension applies to, then the more likely it is that the act is an unconstitutional suspension. This theory is entirely implausible, because it would mean that the clause means what it says.

Duffy,

A suggestion that the suspension clause acts as a one way ratchet is contrary to the Constitutional principle that a legislature cannot bind a subsequent legislature and also contrary to history. See, e.g. AEDPA.

Your "no binding subsequent legislatures" argument falters on the fact that the Suspension Clause is itself in the Constitution. There is no such "Constitutional principle" if the Constitution says otherwise. Just sayin'.

But the Constitution DOESN'T say otherwise. The Suspension clause doesn't say, "Congress may not suspend something that, at some time in the next two centuries, one of the sessions of Congress will call 'habeas corpus.'"

If Congress passes a law tomorrow that says "Slander is protected speech under the first amendment," (*) does that mean no future Congress can ever pass a law against slander, because to do so would be abridging free speech? Well, that's one possible interpretation of the first amendment, but is it a sensible one?





(*) Let's assume the law is Constitutional -- for instance, that it applies only in DC and on other federal lands.

Anderson, if you're just making an abstract observation about the relationship between constitution and law, I don't disagree. The Constitution could say, "Once Congress passes a law about subject X, it can never be ratcheted back." Given that sort of language, there would be no sense in arguing that the Clause can't bar future legislatures because of a Constitutional principle.

I don't think that's what DrGrishka is saying, however. What Grishka is saying is that, given the general principle that legislatures can't bind future legislatures, it doesn't make sense to interpret the Suspension Clause as violating that principle, when there's another interpretation of the Suspension Clause which wouldn't violate that principle.

jrose: Isn't it plausible that the Court would prefer to settle a case based on statutory interpretation without prejudicing whether a companion Constitutional right exists?

That is more than plausible. My understanding is that in Rasul v Bush, the Guantanamo parties themselves avoided making a constitutional claim, so it would have been unususual for the court to reach out and decide one.

The majority opinion in Rasul was a statutory holding, even though the dicta -- "Application of the habeas statute to persons detained at the base is consistent with the historical reach of the writ of habeas corpus." -- bears on the constitutional question.

Scalia's dissent likewise focused on the statutory issue. In a footnote, he quoted the appellant's oral argument to that effect:

See Tr. of Oral Arg. 5 (“Question: And you don’t raise the issue of any potential jurisdiction on the basis of the Constitution alone. We are here debating the jurisdiction under the Habeas Statute, is that right? [Answer]: That’s correct. . .”).

jrose:"Isn't it plausible that the Court would prefer to settle a case based on statutory interpretation without prejudicing whether a companion Constitutional right exists?"

Hopefully, and if they do the President wins hands down. Surely, if Congress grants a privledge by staute Congress may revoke that privledge. The dissent in the instant case was based on the premise that in so revoking, Congress removed a constitutional right which the detaintees held independent of legislative enablement. My point was that SCOTUS would have to agree that their exists some plenary unassailable right to the the Writ to overrule.

Just An Observer:

That is more than plausible. ...
The majority opinion in Rasul was a statutory holding...Scalia's dissent likewise focused on the statutory issue.

Exactly right. But the MCA made Rasul moot. Congress has repealed the statutory reach that Rasul found extended to Gitmo. There is nothing left of Rasul except the lowly dicta, unsupported by reason or history (see Scalia's dissent). The Writ applied to subjects of the King. It is a reasonable stretch to extend the privledge to resident aliens who have "assumed the obligation of citizenship", it is unreasonable to extend the Writ to combatants who actions threaten the rights of citizens.

What I don't understand is the alternative point that turns on the import of the phrase "at the absolute minumum." If the 1789 understanding did exclude a situation such as Guantanamo, how else might it have been included later except by statute? (In fact, Rasul held that the statute in 2004 included such a situation, without reaching a direct constitutional grounding that was only suggested in dicta.)

But why could Congress not amend or repeal its own statute to take away what it once had granted? Is the theory that the Suspension Clause forbids that action, that there is a constitutional "high water mark" created by statute that can never be rescinded except by invoking suspension?

I'm looking forward to an answer to JaO's question (paging Mark Field?).

You guys stay up way past my bedtime.

I'm not sure what the Court meant in St. Cyr. Here's my best guess.

An originalist (of whatever flavor) would generally take the view that we must interpret Constitutional clauses as they were understood in 1789 (I'm glossing over distinctions here). A non-originalist would not agree. I believe the Court was trying to avoid that dispute with its "at a minimum" language. It also may have recognized that, as a practical matter, the Court has never had occasion to develop a "common law"-style constitutional jurisprudence of the Writ precisely because the statutory writ has generally provided all the relief necessary. Thus, there isn't the usual concern of non-originalists regarding the stare decisis effect of intervening decisions regarding the scope of the Writ.

I'm not an originalist. However, the Writ is one issue where the Founders very likely had MORE expansive views than we do today. They were all very acutely aware of the experience under the Stuarts; most of their ancestors came here for that reason. Virtually all of the rights they protected stem from that experience. Given the disgust with Stuart "gamesmanship" regarding the Writ, I'm sure they'd recognize the current Administration actions for what they are.

DrGrishka:

There is a flaw in your analogies. There is no prohibition against citizenship. There is one against suspending the Writ. Most of us libertarians know it is for a good reason- our freedom and liberty.

The fact that legislatures have withdrawn or contracted the reach of the Writ in the past without challenge does not make the action Constitutional. Our courts do not scrutnize all legislation. They focus on what is presented in a case or controversy. We could have legislation decreeing the value of the constant 'pi' as 3 (it seems this happened a long time back in Indiana on some Biblical argument along lines adopted to promote creationism). It does not change reality and the legislation even if unchallenged is not only substantively wrong, it is also establishing religion- a legal error. Thus, past legislative goofiness means little.
What exactly is the problem with a ratchet like interpretation of the suspension clause? Actually none. Any serious error could be fixed by Amendments to the Constitution- we did that with prohibition. On the upside it promotes liberty and prevents the very errors that the availability of the Writ is expected to address.
Granted, if there is no need to use a Constitutinal basis (when other arguments will suffice) it is preferable to do avoid interpreting the Constitution in an abundance of caution in view of our fallibility. However, if push comes to shove, this is not a close call. I know of no serious adverse consequences from 'too' liberal an access to the Writ that would indicate that it should be denied liberally.
Restrictive interpretations of the Constitutional protection of the Writ do have serious negative consequences starting with confusing statutory, Constitutional, Executive, Judicial and other flavors of Writs being made possible in arcane wordsmithing exercises. All of these end with less liberty when it is needed the most with no public good coming of it.

My point was that SCOTUS would have to agree that their exists some plenary unassailable right to the the Writ to overrule.

Didn't Kennedy make that argument in his Rasul concurrence, and don't you expect the Rasul majority to embrace his view if they conclude that the MCA supercedes their holding that 2241 provided statutory habeas?

jrose:

Didn't Kennedy make that argument in his Rasul concurrence, and don't you expect the Rasul majority to embrace his view if they conclude that the MCA supercedes their holding that 2241 provided statutory habeas?

Kennedy no where addresses the constitutional scope of habeas. He concurred with the majority's stautory conclusion but applied a different line of reasoning based on his view that Gitma is defacto US sovereign territory. In his concurrence he agreed with the minority that Eisentrager should be the controlling precedent. Assuming he holds to that position, he would still have to explain how enemy combatants have a constitutional habeas right (in clear definance of both Congress and the Executive which hold that they do not) and why that constitutuional right is controlling here and was not in Eisentrager. My prediction, given the sympathy he expressed for Scalia's arguments, is that both he and Souter will not be willing to go so far as to extend a constitutional habeas right to POWs, especially since the second part of Kennedy's argument (no other way to challenge a detainee's status) was obviated by Hamdon and the MCA.

Rattan,

Your argument fails for the following reason. First, Congressional tinkering with habeas has been addressed numerous times (see, e.g., numerous AEDPA cases). Scaling back of habeas has never been held to be unconsututional. Second, yes we can "fix" things with Constitutional amendments, but it is rather perverse to suggest that once some Congress enacts something the only way to repeal it is through Constitutional amendment. That impermissibly emasculates and diminishes the power of future Congresses.

The problem with your approach (even though you see none) is the unbalancing of our system of separation of powers and restricting ability of future generations to respond to crises as tehy see fit. By your logic, if Congress enacts some very broad access to habeas and then sees that the statute creates abuse and is obviously not working it is powerless to repeal that statute. That simply has never been and cannot be the law.

FYI, I don't believe this news, reported late yesterday in SCOTUSblog, has been noted in this thread: Detainees to seek fast-track appeal


While I remain uncertain of the outcome, I hope I don't have to wait a year to find out.

I am not assuming the conclusion. I am assuming that a class of combatants exist, but not that any particular individual is a member of that class.

I assume that too. The problem is that we have to have some way of deciding which detainee falls into which category. Ruling out a fair hearing in advance means that we de facto treat ALL prisoners as falling into just the one category.

As I read you, you're saying that because the combatants have willfully chosen to render themselves indistinguishable from innocent civilians, we should offer additional process to anyone captured in case they might be non-combatants.

No, I'm saying that the innocent have the right to establish that. For example, we don't take all murder suspects and lock them up forever just because we don't want to give "extra" rights to murderers. We do so because we believe that those suspects who are innocent shouldn't pay the cost of others' guilt.

How is it in anyone's best interests to provide benefits for being a war criminal? How is this not a perverse incentive?

For the same reason that criminal trials are not an incentive to commit murder. There is no benefit to spending the resources to try someone who's guilty. The benefit is that it's unjust to punish the innocent; we have to have a process in place to assure we don't.

I also question your assumption that a true combatant wouldn't avail themselves of every iota of process we deem to give them. What would compel this sudden act of honor? If there's any possibility that they could use our granted process to free themselves, they should be expected to avail
themselves of it.

I could be wrong, of course, but in my experience when people are caught in flagrante, they generally don't fight it much.

But really, this is just a dispute over details. Even the Bush Administration agrees that there must be some process to separate the righteous from the wicked (NB: that's a Buffy reference). The real question is whether the Administration gets to control that process or the judiciary does.

Note that I'm not assuming that there won't be instances of injustice (people inappropriately detained, etc.) However, culpability for that injustice lies solely with the war criminals who made themselves indistiguishable from the civilian population. If they weren't fighting as war criminals, this problem wouldn't exist.

This argument proves too much. One could say the same about ordinary criminals. I don't think it would comfort the innocent much to know that having them held in perpetuity made the rest of us feel better and wasn't our fault.

And as to your aside about treating Gitmo detainees as criminals: What US laws were broken by those fighting in Afghanistan? How does the US criminal justice system have jurisdiction to try them? How does treating them as criminals not run completely afoul of Article 84 of the Third Geneva Convention?

Treating soldiers as criminals is permissible if they violate the recognized laws of war. Merely wearing a uniform won't protect you against, say, a rape charge.

The US government might or might not have jurisdiction to try someone; depends on the circumstances so I can't answer the question without specific facts. But surely murders violate the laws of Afghanistan and the government there is supposed to be on our side. Iraq, of course, is a somewhat trickier issue, but then that's more our fault than anyone else's.

While I remain uncertain of the outcome, I hope I don't have to wait a year to find out.

Personally, I wouldn't complain if there was some delay, just to give Congress a chance to vote on repealing the habeas stripping provisions. I think that vote will gain a majority, and I think that would provide political support for the Court even if Bush vetoes it.

Oren

The founders would likewise have thought the notion of women/blacks/reds/yellows/children (perhaps not all of the forgoing) having due process rights to be likewise laughable. Remember that for a large portion of our history, a red man could be neither witness nor victim in our courts. Nor could a woman accuse her husband of rape or abuse, lest she be deemed 'hysterical'.

And yet not one of those grievences prevailed. They were addressesd the way the founders intended, through legislation and when necessary, ammendment. You rememebr ammendment right? It's that quaint notion that guided the evolution of our Republic before the Court decided it could dispence with such an unwieldy contrivance and simply declare that the basis for their desire was in the Constitution all along.