The Senate Votes to Curb Habeas Corpus Petitions by Guantanamo Bay Detainees: How the Bill Threatens the "Unwritten Constitution"

By MICHAEL C. DORF

Monday, Nov. 21, 2005

Last week, the Senate unanimously approved a defense authorization bill which, if approved by the House, will dramatically curtail the ability of prisoners held at the U.S. Naval Base in Guantanamo Bay, Cuba, to challenge their detention in federal court.

In including the measure in the larger bill, the Senate compromised over an even more drastic proposal by Senator Lindsay Graham. Still, even the compromise, known as the Graham/Levin Amendment, reflects a remarkable degree of deference to the military and the Executive Branch--and arguably, an equally remarkable degree of distrust of, even contempt for, the federal courts.

As I explain below, the Graham/Levin Amendment is arguably constitutionally valid in the technical sense. But it violates what I shall call the "unwritten Constitution"--a set of understandings, developed over the years, that hold that certain technically permissible legislative efforts to interfere with judicial independence are simply beyond the pale.

Even worse, the Graham/Levin Amendment is, in this respect, part of an unfortunate recent trend.

Background: The Rasul and Eisentrager Decisions

In 2004, in Rasul v. Bush, the Supreme Court rejected the Administration's argument that federal courts have no jurisdiction to hear habeas corpus petitions from persons detained at Guantanamo Bay.

In putting forth this contention, the Administration had relied on the Court's 1950 decision in Johnson v. Eisentrager, which held that German prisoners captured and held overseas pursuant to the rulings of military tribunals could not file habeas petitions in a federal district court.

The majority opinion of Justice Stevens in Rasul began by noting some distinctions between that case and Eisentrager. Chief among these was the fact that the Guantanamo Bay detainees maintained their innocence and had not been charged, much less tried or convicted of any offense before any tribunal. These distinctions, the Court perhaps suggested, might give the Guantanamo Bay detainees a constitutional entitlement to habeas corpus review.

But that was only a suggestion. The core of the Rasul decision rested, instead, on an interpretation of the habeas corpus statute. According to the Justices, cases between 1950 and 2004 made clear that a habeas corpus petitioner need not necessarily be present within the territory of the United States. Moreover, the Court said, even if the habeas statute were to be read to have no extraterritorial application, given the fact of U.S. control, the Guantanamo Bay Naval Base should be deemed, in effect, U.S. territory.

Accordingly, for the last year and a half, the law has clearly allowed habeas petitions to be filed by Guantanamo Bay detainees, and earlier this month the Supreme Court granted review in one such case, Hamdan v. Rumsfeld. The Graham/Levin Amendment, if voted into law by the House, would throw that understanding into doubt.

What the Graham/Levin Amendment Would Do

The Graham/Levin Amendment raises a host of difficult legal questions, but, here, I will only summarize its main features.

In one respect, the Graham/Levin Amendment represents a welcome and long-overdue effort by Congress to take some responsibility for the military tribunals that the Administration has established under the guise of Congressional authorization or acquiescence. Toward this end, the Amendment would require the Defense Department to report to Congress on the procedures it adopts for "combatant status review" panels to determine whether individual detainees are indeed enemy combatants. It also would require Senate confirmation of the civilian panel members and bar the use of evidence obtained by coercion. To this extent, the Amendment is a good idea.

But if Congressional oversight of the treatment of detainees is welcome, the core of the Graham/Levin Amendment is not. It curtails a different, and equally important, form of oversight: judicial review of decisions by military courts. The Amendment's key provision would strip the federal courts of jurisdiction to entertain habeas corpus petitions from Guantanamo Bay detainees--except in two circumstances.

First, a person determined to be an enemy combatant by a combatant status review panel could bring a challenge to that determination, on the grounds that the panel failed to apply the Defense Department's rules, or that the application of those rules violated the Constitution or a federal statute.

Second, there is an exception concerning military commissions. In the Administration's view, a determination that a detainee is an enemy combatant makes him eligible for a war crime prosecution before a military commission, which can sentence a convicted detainee to imprisonment or death. Under the Graham/Levin Amendment, a detainee who has been convicted by a military commission, and sentenced to death or ten years or more in prison, can bring a challenge to the military commission proceedings on the same grounds available for challenging combatant status determinations: that the Defense Department failed to apply its own rules, or that the application of those rules violated the Constitution or a federal statute.

With respect to both these exception, habeas review of a detainee's petition can occur only after the proceedings he wishes to challenge have run their course. That feature of the Amendment may require, among other things, the Supreme Court's dismissal of the Hamdan case, because Hamdan filed his petition objecting in advance of his pending trial by a military commission, and the crux of that petition challenges the constitutionality of, and statutory authority for, the commission. (Hamdan has already received a combatant status review panel determination deeming him an enemy combatant; thus, even under the Graham Levin Amendment, he could now pose a challenge to that separate determination.)

What the Graham/Levin Amendment Does Not Allow

Perhaps the oddest feature of the Graham/Levin Amendment is that it does not provide any habeas corpus review for the one category of persons who may, under an expansive reading of Rasul, be constitutionally entitled to it: Detainees who are either not given a combatant status determination, or who are determined not to be enemy combatants but held anyway.

The Graham/Levin Amendment would, as a practical matter, allow such detainees to be held indefinitely, without any judicial oversight. Granted, the military may presently intend to afford all detainees combatant status review, and to release all prisoners found not to be enemy combatants, but if so, where is the harm in preserving habeas for someone who is not afforded such treatment?

Another effect of the Graham/Levin Amendment would be to make habeas corpus unavailable for detainees who object to the conditions of their confinement. Thus, a prisoner cannot get into federal court by claiming (or presenting evidence) that he is being subject to torture or otherwise degrading treatment.

Finally, for purposes of this brief summary, the Graham/Levin Amendment requires that any habeas petitions filed under its exceptions be brought in the U.S. Court of Appeals for the D.C. Circuit, on which it confers "exclusive" jurisdiction.

That could be read to preclude Supreme Court review of habeas corpus petitions (although in my view the better reading is that, in saying nothing about appeals, the Amendment would leave in place the power of the Supreme Court to review D.C. Circuit decisions.)

Is The Graham/Levin Amendment Constitutional?

So, is the Graham/Levin Amendment constitutional? The answer is probably yes.

To begin, Congress has the power to suspend habeas corpus in wartime, and, although Congress has not issued a formal declaration of war, it has taken a number of actions that clearly authorized the deployment of U.S. troops in Iraq and Afghanistan, where most of the Guantanamo Bay detainees were captured.

There is no good reason to think that Congressional power to suspend the writ of habeas corpus must be exercised all-or-nothing; if a war in some areas makes resort to courts highly impractical or dangerous, Congress should be permitted to suspend habeas corpus in the war zone but not in other places.

However, the Graham/Levin Amendment does not purport to suspend the privilege of the writ of habeas corpus, and with good reason. Although Senator Graham has warned of a flood of litigation from Guantanamo Bay detainees, the fact is that the federal courts could easily decide the issues at stake in these cases without creating substantial docket pressure.

Moreover, as Justice Kennedy noted in a separate concurring opinion in the Rasul case, Guantanamo Bay is not located on or near a battlefield, where court access would disrupt an active campaign. It is a secure base that was chosen as a military prison precisely because of its distance from the action.

Nonetheless, even without suspending the privilege of the writ of habeas corpus, Congress has no constitutional obligation to make federal habeas review available in all times and in all places. As noted above, persons who are simply held indefinitely, without being found to be enemy combatants, may have a constitutional right to habeas under the Rasul Court's reading of Eisentrager. But as to the bulk of detainees, determinations by the combatant status review panels and military commissions are probably adequate as a technical matter.

The Unwritten Constitution

It would seem, therefore, that most objections to the Graham/Levin Amendment must go to its wisdom, rather than its constitutionality. At a time when there are grave concerns about the Administration's conformity to international and domestic legal standards in the treatment of prisoners, as well as doubts about its honesty in matters relating to the ongoing wars, one could think it imprudent to reduce judicial oversight of military captives.

Yet, I want to suggest that the Graham/Levin Amendment is objectionable on a further ground--that it violates what I'll call the "unwritten Constitution."

Much of constitutional law is unwritten, in the sense that the Supreme Court has issued rulings authoritatively interpreting the written text to mean things that are not expressly spelled out. The rights to freedom of expressive association, to send children to private schools, and to be free of race and sex discrimination, and many other constitutional norms we take for granted, are unwritten in the sense that they are implied by what is written.

However, when I say that the Graham/Levin Amendment threatens the unwritten Constitution, I use that term in a different sense, one that is much closer to the English notion of constitutionalism.

England lacks a written constitution, and thus for many years the English system of government has been said to be one of parliamentary supremacy. Nonetheless, lawyers, judges, politicians, scholars, and ordinary English subjects routinely speak of the English Constitution. By this term they mean both the actual way in which English government functions at any given time--literally how it is "constituted"--and the notion that certain sorts of government action are simply unthinkable.

Accordingly, when the American colonists protested that various parliamentary measures in the 1770s violated their rights as Englishmen, they were not simply confused; they understood that no court could hold an act of Parliament unconstitutional, but they nonetheless took for granted that Parliament was not supposed to pass laws inconsistent with fundamental principles, such as those set out in the Magna Carta and other landmark documents.

It is in this English sense in which I say that the United States has an unwritten Constitution--one that forbids Congress from taking certain sorts of measures even though the actual written Constitution, and the judicial precedents interpreting it, would allow them.

For example, Article III of the Constitution clearly grants to Congress the discretion to create, and thus to eliminate, all lower federal courts, leaving only the Supreme Court. Yet today, an act of Congress abolishing the lower federal courts would rightly be deemed an assault on the independence of the judiciary.

Likewise, the Constitution does not fix the number of Justices on the Supreme Court, which fluctuated in the Nineteenth Century. Yet when President Franklin D. Roosevelt sought to increase the number of Justices as a thinly disguised method of packing the Court with jurists sympathetic to his political program, Congress rightly rejected his scheme as fundamentally inconsistent with separation of powers.

The rejection of the Court-packing scheme was, in an important sense, an affirmation that the Supreme Court is a co-equal body with Congress and the President. Thus, were Congress today to attempt what it accomplished in 1802--and cancel a session of the Supreme Court--nearly everyone would rightly understand this as an assault on the Constitution itself.

Critics of judicial review have also sometimes seized on the language in Article III that permits Congress to make "exceptions" to the Supreme Court's appellate jurisdiction. In the civil rights era, some politicians invoked this language in proposing to strip the Supreme Court and all other federal courts of jurisdiction to order busing as a remedy for racially segregated schools. More recently, some members of Congress have proposed stripping the federal courts of jurisdiction over challenges to the Pledge of Allegiance.

The proponents of jurisdiction-stripping, Court-packing and other threats to judicial independence are not wrong to point out that the written Constitution gives Congress enormous power over the jurisdiction of the federal courts. What they overlook, however, is something more fundamental: Judicial independence depends on Congress respecting the spirit of separation of powers, not merely its letter.

Unfortunately, Congress of late has shown little respect for the unwritten Constitution. Most spectacularly, earlier this year, Congress enacted legislation governing exactly one case, the end-of-life saga of Terri Schiavo. To be sure, there is a history of such "private bills," which originated at a time when the lines between legislatures and courts were much less clear, and for that reason, "Terri's Law" was probably valid as a matter of technical constitutional interpretation. But the law was very much at odds with the spirit of separation of powers--that is, the modern unwritten Constitution.

Judged by the standards of early American history and the Schiavo case, the Graham/Levin Amendment is a relatively modest threat to judicial independence. But it is a threat nonetheless. It strips the federal courts of jurisdiction not because they are incapable of rendering fair decisions in the detainee cases, but because the Senate fears they will do just that.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His 2004 book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases. His next book, No Litmus Test: Law Versus Politics in the Twenty-First Century, will be published by Rowman & Littlefield in March 2006.

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