By Sophie Brill

A defining moment for the new Roberts Court is likely to come before the year is out. Last fall, Congress passed and the President signed the Military Commissions Act, a provision that, among other things, explicitly denies the writ of habeas corpus to alien “enemy combatants.”1 The new statute is the latest move in a legal battle that has now gone on for years over the constitutionality of the Bush administration’s detention program in Guantanamo Bay, Cuba. If and when it reaches the Supreme Court, it seems likely to be overturned on constitutional grounds. Such a ruling would strengthen our tradition of civil liberties and renew our commitment to the rule of law.

When a non-U.S. citizen is captured abroad by our military, declared an enemy combatant in the “war on terror,” and brought to a naval base to be held indefinitely, what legal rights can he invoke? And how far can the executive and legislative branches of our government go without violating key constitutional principles? These are the questions the Supreme Court began answering in early 2004 with its decision in Rasul v. Bush. While Shafiq Rasul himself had been released by the time his case made it to the Supreme Court, fourteen other prisoners still had their fates tied to his case. The central question was whether these men could petition for writs of habeas corpus in U.S. courts in other words, whether they had any access to our legal system. The Supreme Court, in a 6-3 vote, answered yes.

The decision did not mean that Guantanamo detainees have constitutional rights to the usual criminal proceedings. They are not guaranteed lawyers, quick and speedy trials by jury, high standards of evidence, the right to plead the Fifth Amendment, and so on. They can be tried by a group of military officers in Guantanamo, found to be enemy combatants, and locked away for good. The Court’s decision meant only that Guantanamo Bay is not a legal “black hole” from which there is no appeal. Taken literally, a writ of habeas corpus is a court’s demand for state authorities to bring the physical body of a prisoner before it and provide a reason for his detention. This fundamental principle is a pillar for the rule of law and it is what Congress sought to take away when it passed the Military Commissions Act last fall.

The legal issues surrounding Guantanamo are complicated by the place itself. While the base is in Cuba, it is leased indefinitely by the United States and controlled by our military. This lead the Court to conclude in Rasul that federal courts do, in fact, have jurisdiction to entertain habeas petitions from the detainees. One complication, however, is that the Court made this ruling based on a congressional statute rather than on constitutional grounds. That is, an act of Congress based on the Judiciary Act of 1789, which gives federal courts authority to hear habeas petitions, was read to include Guantanamo Bay. In passing the Military Commissions Act, Congress clarified any doubts about its intent by essentially stripping the courts of any jurisdiction over Guantanamo detainees (at least where non-citizens are concerned). If the Court is to step in now, it must overrule Congress on constitutional grounds.

Courts have a well-established method of giving laws a benefit of the doubt where constitutionality is concerned. That is, a court will first try to interpret a statute in a way consistent with the Constitution before simply overruling it. The MCA leaves no room for this kind of maneuver. It was passed in direct response to a case that came after Rasul, called Hamdan v. Rumsfeld. Having established in Rasul that Guantanamo Bay is within its jurisdiction, the Court went a few steps further in Hamdan: a 5-3 majority held that the military commissions being used there to try the detainees violated both the Uniform Code of Military Justice and the Geneva Conventions. In doing so, however, the majority emphasized that the executive branch had been acting without express authority from Congress. Justice Kennedy’s concurrence, in particular, cites a precedent set in Youngstown Sheet and Tube Co. v. Sawyer, when the Court stopped President Truman from seizing a steel factory during the Korean War. Justice Kennedy quotes Justice Jackson’s statement here: “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum… [But when] the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”2 The Hamdan decision, then, was a sort of challenge to the other two branches of government. The executive branch couldn’t do what it was doing without legislative permission. The Republican-controlled Congress took the bait. Not only did it expressly authorize the military commissions it stripped the federal courts of jurisdiction to hear any potential appeal. Lest there be any confusion, it denied all alien enemy combatants the right to a writ of habeas corpus. Now, by Justice Kennedy’s own reasoning (joined by Justices Souter, Ginsburg and Breyer), the President’s authority is “at its maximum.”

The next complication comes from a precedent set in a case called Johnson v. Eisentrager from World War II. Twenty-one German citizens had been captured by U.S. forces in China, and then tried and convicted by military commissions. When they tried to file habeas petitions, the Supreme Court turned them down, reasoning that foreigners held outside of the United States had no access to U.S. courts. That precedent is relied upon heavily by Justice Scalia’s dissent in Rasul as applying to Guantanamo Bay. The majority, on the other hand, dodged the issue by appealing to the congressional statute passed later on (and effectively negated by the Military Commissions Act), rather than to the constitution itself.

Several chips, then, seemed stacked against the fate of habeas corpus in the next round of cases. An act of Congress, roundly endorsed by the President, explicitly revoked it for non-citizens held in Guantanamo Bay thus obliterating the previous debate over statutory meaning from Rasul. As for constitutional grounds, Eisentrager appears to set a precedent that foreigners held outside the U.S. are not entitled to a writ of habeas corpus. Yet there are almost certainly five votes on the Supreme Court that will overturn this part of the Military Commissions Act and restore a legal tradition some 900 years old.

The simplest argument comes from the Constitution itself, which states quite simply, in Article 1, Section 9 (commonly known as 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.” Neither Congress nor the executive branch has attempted to claim that there has been a rebellion or invasion. Instead, the Bush administration’s position is that this constitutional right does not exist for foreigners held outside the U.S., which, they claim, includes Guantanamo Bay. Just over a month ago, the federal Court of Appeals in Washington D.C., in a 2-1 decision, agreed.

This is the decision that is teed up to get overturned when it comes before the Supreme Court. The case, Boumediene v. Bush, is basically a reiteration of Rasul the  question is whether detainees in Guantanamo are entitled to habeas writs but here the detainees appealed on constitutional grounds. That is, they pointed to the Suspension Clause. The government, meanwhile, pointed to Eisentrager and argued that since Guantanamo Bay isn’t really in the United States, the same precedent should apply. The D.C. Court may have agreed, but the Supreme Court isn’t likely to. Justices Stevens, O’Connor, Souter, Ginsburg and Breyer all agreed in Rasul that the government’s lease and control over Guantanamo effectively make it a U.S. jurisdictional territory. Justice Kennedy, moreover, specifically spelled out the differences from Eisentrager in his concurrence, stating that “Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities.” Even with Justice O’Connor gone, this still makes five minds that consider Guantanamo Bay subject to the constitution.

Meanwhile, the fact that the D.C. Court sided with the government has almost no predictive impact. This, after all, is the same court (and the same judge’s logic) that was overruled in Rasul, and again in Hamdan. Justices Scalia and Thomas have registered their unlikeness to side with detainees in almost all the Guantanamo cases that have come before the Supreme Court but Justice Alito and Chief Justice Roberts are by no means sure things. True, they both sided against the decision in Hamdan (Roberts while he was still serving as a circuit judge), but the constitutional issue here is far more basic. It is well established that foreigners have the right to file habeas petitions when they are detained in the U.S.; that much has been decided in multiple Supreme Court decisions, many involving detention by the Immigration and Naturalization Service.3 The only question, then, is whether Guantanamo Bay can properly be considered under United States control. The Supreme Court already essentially said it is, in Rasul. The D.C. Court’s arguments in Boumediene, on the other hand, are shaky at best. Judge Randolph, for example, attempts to claim that Guantanamo cannot be considered a U.S. territory because Congress hasn’t exercised its constitutional powers to make laws regulating it. Yet in the next sentence, he alludes to the Military Commissions Act a law that regulates procedures in Guantanamo Bay! True, the MCA’s regulation is essentially the forfeiture of a right, but the very fact that Congress spells out what rights a detainee can and cannot invoke surely indicates some form of state power. Technicalities aside, at least four of the justices in Rasul allude to a more general common law principle of habeas corpus that applies to people subject to the custody of the United States government. Justice Kennedy (the fifth “swing” vote), meanwhile, goes out of his way to emphasize that “The facts [in Rasul] are distinguishable from those in Eisentrager in two critical ways”: Guantanamo is essentially a U.S. territory, and the detainees there are being held indefinitely. If and when Boumediene makes its way up to the Supreme Court, he is likely to agree with himself.

On a more basic level, the strangulation of such a fundamental right is bound to touch a nerve for nine justices whose livelihoods revolve around the rule of law. As (Republican) Senator Arlen Specter who was chair of the Senate Judiciary Committee at the time bill passed put it, the habeas clause “set[s] back basic rights by some nine hundred years.”4 While the Court might traditionally be reluctant to take on both branches of government during wartime, the political majority in Congress has switched, and many Democratic leaders have already discussed removing the habeas clause. The Bush administration, meanwhile, faces an ever-widening credibility gap when it comes to the judicial system. The administration used Khalid Sheik Mohammad’s recent confessions as a note of triumph, but a disturbing lesson remains: Mohammad may have targeted major landmarks for destruction, but the legal system we build to respond to those like him should never target even more core elements of who we are and what we value.

Sophie Brill is a senior Ethics, Politics and Economics major in Timothy Dwight College. 

Endnotes
1. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006), §950(j)(b).
2. Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-7 (1952).
3. See, for example, INS v. St. Cyr, 533 U.S. 289 (2001).
4. Quoted by Jeffrey Toobin, “Killing Habeas Corpus.” New Yorker, December 4, 2006.

---