28 Sep Has the Writ of Habeas Corpus Been Suspended? Nope. (Updated)
Opponents of the soon-to-be-passed Military Commissions Act establishing procedures for interrogating and trying alleged terrorists have charged that the bill would suspend the Writ of Habeas Corpus. I think it would be serious thing to suspend the Writ and I am persuaded that my earlier analysis of Congress’ power to suspend the Writ was incomplete and possibly wrong. But I don’t think any suspension has occurred here.[Although the question is now closer thanks the version that Marty Lederman has pointed out to me below].
Senator Arlen Specter of Pennsylvania, who offered an amendment restoring habeas rights for aliens, calls those rights “a constitutional requirement and it is fundamental that Congress not to legislate in contradiction to a constitutional interpretation of the Supreme Court.” (Sen. Carl Levin, a Democrat, has gone farther charging that “The habeas corpus language in this bill is as legally abusive of rights guaranteed in the Constitution as the actions at Abu Ghraib, Guantanamo and secret prisons that were physically abusive of detainees.”)
But I don’t quite understand why Specter (or Levin) thinks this bill suspends the Writ, especially since Specter at least supported the 2005 Detainee Treatment Act which has almost exactly the same language. In each instance, Congress is trying to remove federal court habeas jurisdiction over petitions by “aliens” outside the territorial United States. The 2005 law was limited to aliens in Guantanamo Bay, Cuba whereas the Act today is limited to aliens “outside the United States”. {Marty Lederman below points me to a version of the act that does not have a territorial limitation. Although, as I explain below, the territorial distinction will likely still matter, the Act doesn’t actually draw this distinction.) But it doesn’t strike me as a huge difference since most detainees are in Guantanamo anyway and the detainees outside Guantanamo (for instance, in Iraq) always had a weaker claim to the Writ. So in both cases, they were losing whatever habeas rights they might have had – but they lost them last year already. So why is Specter upset all of a sudden?
Moreover, Senator Specter seems to believe that the Supreme Court has already decided that the writ of habeas corpus extends to all individuals held in U.S. custody. He has repeatedly cited Justice O’Connor’s opinion in Hamdi v. Rumsfeld for this proposition. But I don’t think this is right either. In Hamdi, Justice O’Connor wrote: “All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States.” (emphasis added). In order to suspend the writ, then, Congress has got to be trying to suspend the writ “within the United States.” But by its very terms, the Military Commission Act removes jurisdiction over a “writ of habeas corpus filed by or on behalf of an alien detained outside of the United States.” (emphasis added). This language, by the way, makes it clear that critics like Professor Bruce Ackerman of Yale (a former professor of mine) is simply wrong when he claims that “The bill entirely cuts off [legal residents’] access to federal habeas corpus, leaving them at the mercy of the president’s suspicions.” Legal residents of the U.S. still have the exact same habeas corpus rights as U.S. citizens as long as they are detained in the United States.* [see above].
This provision may be a bad policy decision but I strongly doubt that it is an unconstitutional suspension of the Writ. Congress, rightly or wrongly, has the power to limit the scope of federal court jurisdiction over claims filed by aliens outside the U.S. The Supreme Court has not ruled otherwise, at least not yet.
*UPDATE: These last two sentences were added after I put up the original post.
So even under the Act the Supreme Court has the right to find, if it wishes to do so (I think it should), that those persons detained outside the US can availf of Constitutional habeas corpus??
I think that is right. The sponsors of the bill have expressly disclaimed that this is an attempt to “suspend” the Writ. That being so, the Court is free to find that the right does extend outside the U.S.
Julian: The versions I’ve seen, including the version the House (and presumably the Senate) approved — http://makeashorterlink.com/?E11E53DDD — cut off habeas for all “enemy combatant” aliens, without geographic restrictions (and including, presumably, even POWs). If that’s right, it would overrule Quirin (habeas for aliens in the U.S.) and Yamashita (alien in occupied territory), as well as Rasul. You write: “Congress, rightly or wrongly, has the power to limit the scope of federal court jurisdiction over claims filed by aliens outside the U.S. The Supreme Court has not ruled otherwise, at least not yet.” First of all, what about the power to limit habeas rights of aliens in the U.S. or its occupied territories? Can Congress eliminate that, as it appears to have done here? Second, I will concede that the Court has not yet ruled “otherwise,” because it hasn’t addressed the question directly. But why are you so certain that Congress “has the power to limit the scope of federal court jurisdiction over claims filed by aliens outside the U.S.,” especially in Guantanamo, over which the U.S. has complete control? If you think Congress could not suspend habeas as to detainees we bring to South Carolina, but could suspend it… Read more »
Oh, and by the way: Your title is “Has the Writ of Habeas Corpus Been Suspended? Nope.”
Well, it has been suspended. Today it exists for aliens in the U.S., in occupied territories, and at GTMO (and perhaps elsewhere). Tomorrow it won’t. It *might* be that this suspension is not one the Suspension Clause recognizes because the persons in question are aliens — although you’ve given no basis for that, and the text of the Clause doesn’t provide one — but a suspension it most surely is. Just ask any of the detainees with petitions currently pending.
Marty, Whoops. It looks like I was looking at the wrong version. I suppose I should wait until the final version signed by the President is out. Then I’ll fix my post. Thanks for the clarification and many apologies for the confusion. In my partial defense, I think I was also misled by Senator Graham’s explanation of this provision as being limited to habeas outside the U.S. I do think that the territorial distinction will survive, though, because I somehow doubt that, given the language I cited above in Hamdi, that the government will detain enemy alien combatants within the U.S. (just to be safe). So I think territory will continue to be an important factor. Moreover, it is not that crazy to read federal court jurisdiction as not extending to habeas petitions by POWs, by the way. Wasn’t that one of the holdings of Eisentrager? And I don’t think Quirin or Yamashita actually established that the habeas right exists in those cases, which was also not directly considered (if we want to read those cases broadly, feel free, but recall that both cases also seemed to approve military commission trials). I think the question of how far the habeas… Read more »
1. “And I don’t think Quirin or Yamashita actually established that the habeas right exists in those cases, which was also not directly considered.” Not so. In each case, the Court rejected the President’s assertion that he could deny the detainee the right to challenge the legality of military-commission proceedings (and detention) by writ of habeas corpus. See Quirin, 317 U.S. 1, 25 (1942) (“neither the [President’s] Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners’ contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission”); Yamashita, 327 U.S. 1, 8-9 (1946) (“The courts may inquire whether the detention complained of is within the authority of those detaining the petitioner. . . . [Congress] has not foreclosed their right to contend that the Constitution or laws of the United States withhold authority to proceed with the trial. It has not withdrawn, and the Executive branch of the government could not, unless there was suspension of the writ, withdraw from the courts the duty and power to make such inquiry into the authority of the commission as may be made by habeas corpus.”). 2. “[T]he habeas… Read more »
I wonder if the Senators who voted for it knew what version they voted for?
I doubt it. But no matter, this a rare opportunity to agree with Julian on something: this is not a suspension of habeas — the clear intent is to ABOLISH habeas.
Marty – I think there’s one technical distinction to be made in your habeas arguments. The Philippines was formally a U.S. territory from the turn of the 20th century until independence was granted in 1946 (although under defacto Japanese control from early 1942-mid 1945. If my memory serves me correctly, the S. Ct. in Yamashita was reviewing a denial of the writ of habeas by the Philippine S. Ct., over which it had supervisory jurisdiction, so that the case did not actually involve the issue of habeas availability in occupied territory, but rather in what was then a U.S. commonwealth.
Yes, that’s right — the Philippines was an insular possession at the time. Thanks for the correction, Dave.
it’s true that both quirin and yamashita are not directly on point w/r/t to the question of constitutional habeas rights for overseas alien combatants. there’s an exhaustive overview of similar world war two vintage cases in charles fairman, some new problems of following the flag, stanford law review 1949.
Kal: Just to be clear — I wasn’t suggesting that Quirin and Yamashita are “directly on point w/r/t to the question of constitutional habeas rights for overseas alien combatants.” Merely that the habeas right for alien unlawful combatants did not begin with Rasul — it goes back at least as far as Q&Y, even in the SCOTUS, and that the new bill effectively overrules or suspends that habeas right, too, i.e., in the U.S. and its insular possessions.