Does the U.S. Constitution Extend Rights to Aliens Detained Outside the United States?

The NYT flags an important issue that has been largely lost in the coverage of congressional plans to overhaul the military commission system. As the NYT reports, both the Bush bill and the McCain-Graham alternative would strip federal courts of their jurisdiction to hear habeas corpus appeals from detainees held outside of the U.S. (including Guantanamo Bay). According to the NYT:



Representative Martin T. Meehan, Democrat of Massachusetts, who has taken a leading role in trying to counter the administration’s efforts, said that stripping the federal courts of the right to hear habeas corpus challenges “raised grave constitutional questions.”



But is there a serious or grave constitutional challenge to the elimination of federal court habeas jurisdiction for aliens outside the U.S? I’m no expert on habeas, but I doubt it.



Although the NYT paints this as a rather dramatic or even secretive step by Congress to curtail aliens’ rights, this is really just Congress re-enacting the 2005 Detainee Treatment Act to make it clear that the law really does apply retroactively to existing cases. Moreover, prior to the Supreme Court’s 2004 decision in Rasul v. Bush, habeas rights were not generally thought to extend outside the territory of the U.S. Rasul rested only on a reading of the habeas statute, and did not suggest that the Constitution required granting habeas rights to aliens outside the U.S.



And even if existing habeas rights do extend to aliens outside the U.S., Congress almost assuredly has the right to suspend habeas corpus under article I of the Constitution which permits suspension “in Cases of Rebellion or Invasion the public Safety may require it.”



The larger point is that the U.S. Constitution has not generally been read to extend rights to aliens outside the U.S., or at least it has not been read to extend all of its rights to aliens outside the U.S. (Fourth Amendment – No. Fifth Amendment- maybe). But if Congress passes either the McCain or Bush legislation (and it will almost surely pass one of them), critics of the war on terrorism detentions will have to fall back on these kinds of constitutional arguments. I think these arguments are even weaker than the ones the critics made in Hamdan and Rasul based on the existing statutes and international law. But then again, the critics won in those cases, so I could once again be proved wrong in my predictions of how Justice Kennedy will vote.