Habeas Corpus

Facts

“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.” Constitution of the United States, Article 1, § 9, CL 2.

Detainees at the American operated Guantanamo Bay Naval Base in Cuba, designated by Combatant Status Review Tribunals (CSRT) as enemy combatants, filed a petition for a writ of habeas corpus in the District Court for the District of Columbia Circuit. The court granted all motions of the United States government for dismissal of all claims brought by the petitioners, holding that non-uniformed enemy combatants under arrest had no habeas rights. The United States Court of Appeals for the DC Circuit affirmed the trial court’s ruling, holding that “there is no statutory jurisdiction to issue a habeas corpus to these petitioners,” and “the constitutional privilege of habeas corpus was not available to them.” The detainees were governed by the CRSTs. The matter came before SCOTUS in December, 2007, Boumediene v. Bush, 553 US 723 (2008).

Procedures

In Rasul v. Bush, 542 US 466 (2004), SCOTUS held that the Guantanamo detainees were entitled to file habeas corpus petitions in the federal courts. In announcing the decision in Boumediene, Justice Kennedy noted that the detainees’ right to file the motion for the Writ of Habeas Corpus was a statutory one, created by Congress in the wake of Rasul. Congress twice attempted to amend the law to preclude the detainees from claiming habeas rights. Congress eventually passed the Military Commissions Act of 2006, which took away the jurisdiction of federal courts to hear habeas petitions from CSRT-deemed enemy combatants. The Boumediene detainees argued that the MCA did not apply to their case, because their cases were filed prior to its enactment. Alternately, argued the Guantanamo detainees, the MCA was violative of the Suspension Clause, “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.”

Issues

Four issues came before the Roberts Court on December 5, 2007:

Did the MCA supplant the jurisdiction of federal courts to hear habeas petitions filed by the Guantanamo detainees?
Is the MCA violative of the Suspension Clause of the United States Constitution?
Are the Guantanamo detainees entitled to Fifth Amendment protections of due process?
Can the detainees challenge the judicial review of the MCA?

Rule

In a 5-4 vote, SCOTUS reversed the ruling by the District of Columbia Circuit Court and granted the detainees the right to petition for habeas.

Analysis

The American concept of habeas corpus, said Justice Kennedy, derives in the English common law. English courts historically granted writs of habeas corpus to citizens of English jurisdictions such as Scotland or Ireland, and to citizens of exempt jurisdictions such as the Channel Islands and Canada. When applying the provisions of the Suspension Clause, three still-relevant requirements must be met to extend the reach of the clause, in the instant case to the detainees at Guantanamo. Their status as having been incarcerated for six years with no charges brought met the first requirement. The physical location of their arrests – in this case, Bosnia – factored. And the physical location of their detention – Cuba – was considered. “Applying the whole analysis,” said Justice Kennedy, “we conclude that the writ does run to the naval station and to these detainees. These detainees, therefore, have a constitutional privilege to seek the writ of habeas corpus.”

“Congress must not contravene the Suspension Clause,” said Justice Kennedy, “because Congress did not purport to enact a formal suspension of the writ,” in its creation of the CRSTs. The Suspension Clause could only be suspended in the event of an invasion of the United States or an open rebellion. Because the lower courts did not reach the issue of the CRST reviews of the detainees’ rights or non-rights in lieu of habeas corpus, it was, therefore, the task of SCOTUS to determine if the CSRT reviews were an adequate substitute for petitions for writs of habeas corpus. By 5-4, SCOTUS decided they were not adequate. The provision of the Military Commissions Act of 2006 that removed the determination of habeas from the federal courts is unconstitutional. The CSRT reviews were lawful and could remain, but they could not preclude the petitioning for a writ of habeas corpus. The Guantanamo detainees “may invoke the fundamental procedural protections of habeas corpus.”

Justice Souter filed a concurring opinion, joined by Justice Ginsburg and Justice Breyer. Chief Justice Roberts filed a dissenting opinion, joined by Justice Scalia, Justice Thomas, and Justice Alito. Justice Scalia filed a separate dissenting opinion, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito.

In Rasul, said Justice Scalia summarizing his dissent, SCOTUS held that the federal courts did have statutory authority to permit Guantanamo detainees to file petitions for writs of habeas corpus. President George W. Bush responded to Rasul by asking Congress to statutorily limit the authority of the federal courts. Congress passed the Detainee Treatment Act (DTA), creating judicial review for the detainees, but revoking their Suspension Clause rights. Chief Justice Roberts, said Justice Scalia, was correct in his dissenting opinion that the DTA adequately substitutes for habeas. Later, in Hamdi v. Rumsfeld, 124 S. Ct. 981 (2004), SCOTUS found that the DTA did not strip habeas petitions from cases already filed and pending. Congress then passed the Military Commissions Act, which blocked all habeas petitions from Guantanamo detainees.

“[I]t is true,” said Justice Scalia, “that habeas is an important tool” in protecting constitutional rights against an overzealous executive branch. But the allowance of habeas rights for the Guantanamo detainees was paramount to allowing the judiciary “to second-guess military authorities who have to make life or death judgment calls about who is and who is not an enemy prisoner.” Prisoners released from Guantanamo, said Justice Scalia, have returned to the war against the United States. One became a suicide bomber and killed seven Americans. During WWII, hundreds of thousands of German prisoners were held on American soil, but no American court heard any petitions for writs of habeas corpus. “In our entire history, no prisoner held by our military forces during an ongoing armed conflict has been given resort to our civil courts.”

Ex parte Milligan

In Ex parte Milligan, 71 US 2 (1866), SCOTUS held that military tribunals created by the executive branch may not constitutionally operate when federal courts are available. Chief Justice David Davis said, “martial rule can never exist when the courts are open.”

Lambdin Milligan was an Ohio-born attorney who vehemently opposed Abraham Lincoln, believing that the southern states were constitutionally permitted to withdraw from the union. In 1864, Milligan was arrested at his home in Indiana and charged with conspiring to facilitate the escape of Confederate prisoners held in Indiana and with acquiring and storing a large cache of guns for the Confederates to use following their escapes. Milligan and others were tried by a military tribunal, convicted, and sentenced to death. Milligan argued that he had the right to file a petition for habeas corpus. The United States government said he did not, because his conviction was not in a state or federal court, but rather in the military court. SCOTUS granted certiorari and heard the case in March, 1866.

SCOTUS found that “trials of civilians by presidentially created military commissions are unconstitutional. Martial law cannot exist where the civil courts are operating.”

Ex parte Quirin

Following the outbreak of WWII, eight German spies boarded two submarines and departed for the east coast of the United States. The first submarine came ashore at Long Island, NY on June 13, 1942, the second at Ponte Vedra Beach, FL four days later. The intent of the eight men was to sabotage military targets within the United States. Two of the men quickly turned themselves into the FBI. All eight were arrested. President Roosevelt ordered that they be tried by military tribunal. All of them were found guilty on all counts and were sentenced to death, although FDR did commute the sentences of two of the men to life in prison.

The eight Germans argued that they should have been tried in civil courts, not in a military tribunal, and that they were entitled to habeas protections. Their petitions were denied by the District Court for the District of Columbia, whose ruling was affirmed by the US COA for the District of Columbia. SCOTUS agreed to hear the matter in a special session, Ex Parte Quirin, 317 U.S. 1, (1942). In a Per Curiam opinion, SCOTUS said the “military commission was lawfully constituted,” and that the eight German spies did not demonstrate their entitlement to discharge via a writ of habeas corpus.

Discussion

The SCOTUS holding in Boumediene was not universally applauded. On July 31, 2008, the House Committee on Armed Services, chaired by Rep. Ike Skelton (D-MO), heard testimony from Daniel J. Dell’Orto, the Acting General Counsel for the Department of Defense. “The ramifications of (the Boumediene) decision for the Department of Defense and for our Nation are significant,” Dell’Orto told the committee. In the wake of the decision, over 250 petitions involving over 300 current or past Guantanamo detainees for habeas corpus were making their way through the federal courts. DOD was forced to divert key personnel and other resources from other important work to answer the deluge of petitions. Among other issues, SCOTUS did not provide guidance or rules to handle the backlog, even while acknowledging that national security could be jeopardized.

References

Boumediene v. Bush. (n.d.). Oyez. Retrieved March 31, 2017, from www.oyez.org/cases/2007/06-1195

Committee on Armed Services, US House of Representatives. 2008, July 31. Implications of the Supreme Court’s Boumediene Decision for Detainees at Guantanamo Bay, Cuba: Administration Perspectives.

Constitution of the United States.

Ex parte Milligan (n.d.). Oyez. Retrieved March 31, 2017, from www.oyez.org/cases/1850-1900/71us2

Ex parte Quirin, 317 U.S. 1 (1942). Justia. Retrieved March 31, 2017, from www.supreme.justia.com/cases/federal/us/317/1/case.

Hamdi v. Rumsfeld, 124 S. Ct. 981 (2004).

Johnson v. Eisentrager, 70 S. Ct. 936 (1950).

Rasul v. Bush. (n.d.). Oyez. Retrieved March 31, 2017, from www.oyez.org/cases/2003/03-334.