Detainees lack habeas corpus rights

February 27, 2007|By Robert Hardaway

DENVER -- In the case ruled on last week by the D.C. Circuit Court of Appeals, Guantanamo detainees made the claim that all persons held outside the United States by U.S. authorities, regardless of their nationality or location, have the right under the U.S. Constitution to have their habeas corpus petitions heard in U.S. federal courts.

The appeals court rejected that argument - and with good reason.

In 1950, in the case of Johnson v. Eisentrager, a similar claim was made by a number of German war criminals confined in the custody of the U.S. army in occupied Germany, who attempted to file habeas corpus petitions in U.S. courts challenging their detention. They argued that even though they were being detained outside the territorial boundaries of the United States, the fact that they were being held by U.S. authorities meant that they enjoyed all the constitutional protections accorded to persons in the United States.

The U.S. Supreme Court soundly rejected this extraordinary claim, holding that if the U.S. Constitution "confers its rights on all the world ... it would mean that during military occupation irreconcilable enemy elements, guerrilla fighters ... could require the American judiciary to assure them freedoms of speech, press, assembly in the First Amendment, right to bear arms in the Second, security against unreasonable searches and seizures in the Fourth, as well as rights to jury trial in the Fifth and Sixth Amendments."

In the aftermath of World War II, the U.S. military detained upward of 2 million German prisoners on German soil. The notion that any or all of these detainees had a constitutional right to file habeas petitions in U.S. courts was surely as extraordinary a claim then as the claim today that if U.S. forces ever managed to corner Osama bin Laden, they would first have to apply to a U.S. court to obtain a search warrant to ensure that his Fourth Amendment rights were not violated.

In Eisentrager, the court focused mainly on whether the German detainees had a constitutional right to file habeas petitions, rather than whether they had a statutory right to do so. Presumably this was because the federal habeas statute was so clear in restricting habeas jurisdiction to federal district courts "within their respective jurisdictions," and Germany was clearly not within any of the recognized federal districts.

Nevertheless, in Rasul v. Bush, another habeas case, filed by Guantanamo detainees in 2004, the Supreme Court relied on an obscure case (Braden v. 30th Judicial Circuit Court of Kentucky) in which a detainee who was the subject of a detainer order in Kentucky, but actually held in Alabama, was permitted to file a habeas petition in Kentucky. From this, the court made the extraordinary leap of logic that this case so broadened the notion of territoriality implicit in the habeas statute that prisoners held in foreign countries therefore have a statutory right to file habeas in any U.S. District Court.

So bizarre was this ruling that Congress forthwith passed the Military Commissions Act in 2006, which provides that "no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by ... an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant."

Aside from its argument that there is a "common law" right to habeas, which the court rejected for lack of historical precedent, that left the petitioners in Boumediene v. Bush - the case the appeals court ruled on last week - with one remaining argument, namely that Congress violated the Constitution when it passed the Military Commissions Act because the constitutional provision restricting suspension of habeas to times when the public safety required it was a limitation on congressional power and not a personal right. This argument too was rejected.

Guantanamo detainees can and should be provided with legal rights to enable them to make timely challenges to their detention in duly constituted military courts and be provided with counsel and resources to do so. But this can and should be done by congressional action without purporting to extend U.S. jurisdiction beyond its territory.

It can only be hoped that the U.S. Supreme Court will soon uphold the D.C. Circuit decision in Boumediene.

Robert Hardaway is professor of law at the University of Denver Sturm College of Law and the author of 14 books on law and public policy. His e-mail is

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