Who should determine whether alien enemy combatants captured in Iraq and Afghanistan are properly in the custody of the U.S. government at the U.S. Naval Station at Guantanamo Bay?  The President and Congress have set up special military tribunals to make such determinations, but some federal judges and some critics of President George W. Bush believe that the President’s and the military’s actions in this regard must be subject to review by any of the federal courts.  In Article I, Section 9, of the Constitution, a famous provision provides that “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.”

The writ of habeas corpus is a centuries-old device from English and American law that guarantees citizens a proceeding to determine if they are being illegally incarcerated by their government.  It is not clear, however, whether constitutional protections ought to be extended to alien enemy combatants.  It would be reasonable to believe that constitutional guarantees are only for the people of the United States, who purportedly framed and ratified the document, as its first three words suggest.

Nevertheless, in recent decades, the Supreme Court has, more or less, vaguely suggested that habeas corpus and other constitutional rights ought to be considered as basic human rights and that any humans who find themselves in the grips of our government should be able to invoke them.  There are some treaties to which the United States is a signatory that make similar suggestions, although, generally, these have not been held to apply to terrorists or other aliens who are not members of the official armed forces of other countries.

In 2004, in the case of Rasul v. Bush, the Supreme Court ruled that alien combatants detained at Guantanamo, which is territory leased from the sovereign state of Cuba, could bring habeas corpus provisions, which would have allowed the federal courts located anywhere in the country generally to second-guess the military authorities with regard to what should be done with the purported terrorists.  As might have been expected, many detainees secured the services of American lawyers and sued in habeas corpus actions for their freedom.  Then, in the Detainee Treatment Act (DTA) of 2005, Congress passed a statute providing that no habeas corpus actions were available to any “alien detained by the Department of Defense at Guantanamo Bay.”  By a conservative reading of the statute and the Constitution, this should have been the end of the matter, but, in Hamdan v. Rumsfeld (2006), the Supreme Court held that the DTA could not be applied to the hundreds of actions that were pending at the time the DTA was passed.  The dissenters in Hamdan pointed out that the congressional intent to cover pending cases was clear, but the majority of the Court seemed determined to supervise the Bush administration’s detainee policy.  Continuing the dance, in 2006, Congress passed the Military Commissions Act (MCA), which employed an Article III, Section 10 “stripper” to make it absolutely explicit that no habeas corpus actions were to be available for either pending or future cases.  Detainees could still, because of another federal statute, challenge the determinations by the military commissions, but this could only be done in the District of Columbia Court of Appeals, which had proved overall to be sympathetic to the Bush administration on these issues.

Lawyers for some of the detainees immediately filed an action claiming that the MCA violated “the Constitution, treaties, statutes, regulations, the common law, and the law of nations.”  Space does not permit a treatment of each of these claims, but they were all rejected, in a marvelously sensible opinion issued by two judges of the U.S. Court of Appeals for the District of Columbia Circuit.  Turning to previous cases (the common law), the court observed that no case had ever explicitly held that the writ of habeas corpus could be brought on behalf of aliens held in territory that was not part of the country.

“[T]he Constitution,” observed the court, “does not confer rights on aliens without property or presence within the United States.”  Rejecting this view, the one dissenting judge in the case held that Congress had no power to strip habeas corpus jurisdiction from the federal courts for these detainees, since there was, at the time of seeking the writ, no “Rebellion or Invasion.”  Unfortunately, the majority’s stunningly sensible decision will probably not be the end of the matter, as petitions are currently being filed to get the U.S. Supreme Court to overrule the D.C. Circuit.  These days, no one can predict what the Supreme Court will do, but, since the addition of Chief Justice John Roberts and Associate Justice Samuel Alito to the Court, and since the departure of the more liberal Sandra Day O’Connor,  it seems more likely that the Court will hold that the habeas writ does not run (as the lawyers say) to Guantanamo.  This will hardly be a defeat for the Constitution and the rule of law, since the District of Columbia Circuit will still be able to review the decisions of the military commissions at Guantanamo.  It will, however, be a modest victory for the powers of Congress and the executive branch, and a modest reduction in the amount of overweening activism practiced by the federal courts.