A Federal Appeals Court Upholds the Jurisdiction-Stripping Provisions of the MilitaryCommissions Act of 2006, But Overlooks the Possibility of an Evolving Conception of Habeas Corpus

By MICHAEL C. DORF

Wednesday, Feb. 28, 2007

Last week, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit dismissed the habeas corpus petitions of aliens detained at the Guantanamo Bay Naval Base. The court in Boumediene v. Bush unanimously found that the Military Commissions Act (MCA) of 2006 eliminated federal court jurisdiction to entertain habeas petitions or other federal lawsuits for such detainees. By a 2-1 vote, the panel also held that Congress had not violated the Constitution in eliminating habeas for Guantanamo Bay detainees.

Now the case will undoubtedly go to the Supreme Court. Again. The Justices have already issued two landmark rulings regarding the treatment of foreign detainees.

In the 2004 case of Rasul v. Bush, the Court held that the habeas corpus statute, as it then stood, permitted an alien held at Guantanamo Bay to sue in a federal district court, because the statute, as construed by the Court, only required that there be jurisdiction over the custodian holding the detainee, which there undoubtedly was.

Congress responded by passing the Detainee Treatment Act (DTA) of 2005, which appeared to strip the federal courts of the jurisdiction the Rasul Court had found to exist. But last year, in Hamdan v. Rumsfeld, the Justices said that the DTA did not apply to pending cases, only to future filings. Then, on the merits, the Hamdan Court found that the procedures the Bush Administration had adopted for the detention and trial of enemy combatants violated the Geneva Conventions, which were made enforceable via the Uniform Code of Military Justice.

By deciding the jurisdictional issue in Rasul and Hamdan on statutory grounds, the Supreme Court managed to duck a hard constitutional question: What is the scope of Congress's power to adjust the habeas jurisdiction of the federal courts without formally suspending the privilege of the writ under Article I, Section 9 of the Constitution?

The Constitution states: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." But what exactly is the scope of the writ that shall not be suspended?

In last week's D.C. Circuit ruling, Judge A. Raymond Randolph gave the following answer for the majority: The Constitution requires that habeas corpus (or its equivalent) must be available in only those circumstances in which it was available when the Constitution was ratified in 1789. The court decided that, at the Founding, habeas was not available for aliens who were neither present in, nor the owners of property in, the country. Thus, it concluded that the MCA worked no constitutional violation.

That conclusion is not obviously wrong, although it was vigorously contested by Judge Judith Rogers in dissent. The scope of Congressional power over habeas corpus is quite unclear. But here, as in many other areas, ambiguity does not warrant an interpretive method that gives controlling weight to the original understanding: There is no reason to assume that the Constitution's meaning was frozen in 1789.

The Statutory Non-Issue

Lawyers for the detainees in Boumediene gamely argued that, contrary to what was obvious to everyone who observed the debate over the MCA, the Act was not meant to eliminate habeas corpus jurisdiction for their clients. Citing the Supreme Court's decision in the 2001 case of INSv. St. Cyr, they noted that a clear statement by Congress is required to eliminate habeas jurisdiction. The relevant provision of the MCA, they contended, does not mention habeas, and thus is not a sufficiently clear statement.

However, as Judge Randolph noted, the intended effect of the MCA on this point is impossible to mistake. The statute says that the "amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001." It's true that this provision itself does not use the word "habeas," but it's equally true that the "amendment made by subsection (a)" is an amendment that reads as follows: "No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of 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."

Accordingly, the DC Circuit was right to reject the statutory argument, and the Supreme Court will not be able to duck the constitutional question a third time by relying on statutory grounds for its decision.

The Scope of the Writ in 1789

The real bone of contention in Boumediene concerned the question whether Congress had violated the Suspension Clause by eliminating habeas for foreign detainees without first finding that because of a "rebellion or invasion," the suspension of habeas was required by "the public safety."

If the Guantanamo petitioners are not among the people who have a right to habeas, then Congress did not need to suspend habeas in order to deny it to them. Thus, the disagreement in Boumediene centered around the scope of the constitutional right to habeas, in circumstances where it has not been suspended: Does that right apply to persons in situations like those foreign detainees occupy today?

To answer that question, the D.C. Circuit investigated the scope of habeas corpus as it existed when the Constitution was adopted. Both the majority and dissent accepted British precedents--which would have been well-known to the Framers--as highly relevant.

The crucial point for the majority was that English courts had never granted a writ of habeas corpus for an alien detained outside the territory of the crown. Concluding that the de facto control that the United States exercises over Guantanamo does not rise to the level of sovereignty, the majority determined that the present petitions go beyond the historic office of the writ as it was conceived in 1789.

Even on its own terms, this argument has difficulties. As Judge Rogers noted in her dissent, absence of evidence is not necessarily evidence of absence: Just as the detainees' lawyers could point to no case in which a British court granted a writ of habeas corpus on behalf of an alien held beyond British sovereign land, so the government had pointed to no case in which such a petition was made to a British court and denied on that basis.

Although the far-flung British Empire did imprison people around the globe, the state of communications and transportation in the Eighteenth Century may have prevented such detainees or their kin from finding legal counsel to represent them back in England. Accordingly, the absence of decisions granting habeas petitions of external aliens may simply reflect the absence of petitions seeking writs of habeas for such persons.

From the Eighteenth Century to the Twenty-First

The panel majority's historical argument also proves too much. Judge Randolph quoted a leading English treatise which states that even British subjects held in "remote islands, garrisons, and other places" could not file for habeas relief. Yet the majority of the panel itself acknowledged that, today, Congress could not authorize detention of a U.S. citizen abroad without access to habeas or its equivalent. So it appears that the scope of the writ is not fully defined by Eighteenth Century understandings, after all.

Indeed, as the Supreme Court explained as recently as 2001 in the St. Cyr case, "at the absolute minimum, the Suspension Clause protects the writ as it existed in 1789." (Emphasis added.) That language suggests that today the Suspension Clause protects more than it protected in 1789. Significantly, all five members of the St. Cyr majority--Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer--remain on the Court today. Thus, a majority of the Court appears to be open to the argument that the constitutionally mandated scope of the writ is greater now than in 1789.

Nor should that be surprising, for many constitutional provisions mean something different today from what they meant when they were was first adopted. Modern conceptions of free speech, equal protection, interstate commerce, and a host of other constitutional provisions reflect both changed circumstances and changed values. While the text and original understanding of the Constitution are almost always the starting point for analysis of the meaning of any constitutional provision, they are rarely the end point.

From a Territorial to a Functional Understanding of the Suspension Clause

Perhaps the distinction between U.S. (or British) territory and foreign territory once made sense as a means of parceling out the jurisdiction of Eighteenth Century courts, but given modern methods of transportation and communication, it makes little sense today. Accordingly, there is no good reason to limit the scope of habeas--absent its valid suspension--to persons held within the borders of the United States or its territories. Yet the Boumediene majority treats the scope of the writ in 1789 as reflecting the full modern understanding.

Those who favor reading the Constitution to mean exactly what it was generally understood to mean at its adoption frequently complain that, if judges depart from the original understanding, then they have no fixed standard by which to ascertain constitutional meaning. The charge, however, is doubly misleading.

First, as the disagreement in Boumediene itself illustrates, discerning guidance for modern controversies from Eighteenth Century sources that were contested even in their day, is hardly a determinate exercise that leads to a single incontrovertible result. Second, one can find functional guideposts for modern understandings that also effectively constrain conscientious judges' decisionmaking.

With respect to the Suspension Clause, we might begin with the core function of habeas--to prevent arbitrary deprivations of liberty--and the exigencies of warfare. Justice Kennedy zeroed in on these two factors in a separate opinion in the Rasul case. He wrote: "Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker."

To be sure, Justice Kennedy also thought it significant in Rasul that Guantanamo Bay was, in all relevant respects, part of the United States. And while that continues to be true for the Guantanamo Bay detainees, it is difficult to see why this particular fact should matter more generally. Suppose that the government were to move the Guantanamo Bay detainees to a U.S.-operated military prison on foreign land over which it exercised fewer of the incidents of sovereignty--a military base in eastern Europe or central Asia, say. From a practical perspective--and certainly from the perspective of the detainees--such formal matters would not make any readily perceptible difference. They would still be held by the United States at a place chosen solely by the United States.

What Substantive Rights Do Alien Detainees Have?

To say that alien detainees have a constitutional right to habeas does not mean that their detention is unlawful. It only means that the federal courts have jurisdiction to examine the lawfulness of their custody. Because she believed that there was jurisdiction over the case, Judge Rogers thought it necessary to address the further question of lawfulness.

On this question, Judge Rogers concluded that Congress, in approving "combatant status review tribunals" (CSRTs) in the MCA, had not provided an adequate substitute for habeas. Nor did she think that D.C. Circuit review of CSRT determinations--for which the DTA and MCA also provide--was a sufficient check on the power of the CSRTs, because judicial review is limited to legal questions, not factual ones.

As to the procedures used by CSRTs, Judge Rogers would have found them lacking for a variety of reasons, including the following: the detainee, rather than the government, bears the burden of proof; the government need not inform a detainee of the charges against him; there are strict limits on a detainee's ability to obtain and introduce rebuttal evidence; the detainee is not entitled to his own lawyer; and evidence obtained by torture is not categorically barred. Whether these limitations will prove decisive, should the Supreme Court address them, remains unclear. In the 2004 case of Hamdi v. Rumsfeld, the lead opinion by Justice O'Connor suggested that at least some such limitations would be permissible even in a proceeding to determine the combatant status of a citizen. The constitutional minimum cannot be any higher for a non-citizen.

Of course, CSRTs may well be unlawful because they violate the Geneva Conventions. But Congress has closed that door in the MCA by rendering unenforceable the rights conferred by the Geneva Conventions themselves.

Thus, the Suspension Clause appears to be the alpha and omega of limits on the procedures Congress may establish for holding those whom it deems to be alien unlawful enemy combatants. That provision is almost maddeningly ambiguous: It prohibits suspension of the privilege of the writ, but neither the clause itself, nor any other provision of the Constitution, states what scope the writ has absent suspension.

The constitutional scope of the writ absent suspension is a legitimately difficult question. Whatever answer the Supreme Court gives, one can hope, at a minimum, that it does not simply rely on precedents and materials from the Eighteenth Century.


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at www.michaeldorf.org.

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