Hamdan, Rasul, et al., Imperiled

Marty Lederman

Cross-posted from SCOTUSblog.

The Senate yesterday by a vote of 49-42 passed an amendment to the Defense Appropriations bill, offered by Lindsey Graham, section (d) of which would eliminate the statutory right of habeas corpus for alien detainees held by the Department of Defense at Guantanamo. This would, in effect, overrule the Supreme Court's June 2004 decision in Rasul v. Bush.

This amendment, if enacted, would by its terms appear to eliminate the jurisdiction of the courts -- and thus make meaningless the habeas petitions at issue -- in pending cases, such as, most importantly, the Hamdan case the Court decided to hear this week, and the extremely significant Rasul cases on remand, which are presently pending in the U.S. Court of Appeals for the D.C. Circuit. As Bobby Chesney explains in further detail, this would be a very momentous development, and would probably mean that most or all of the Administration's decisions on, and conduct regarding, detention, interrogation and abuse at GTMO, would be impervious to judicial review and oversight.
Continuing coverage over at Obsidian Wings. [UPATE: Katherine and hilzoy over at OW are in the midst of a series of posts responding to Senator Graham's arguments in support of his amendment. The first of those posts includes a link to Graham's statements on the Senate floor.]

Senator Bingaman reportedly will offer an amendment to the Graham Amendment on Monday that would delete the withdrawal of habeas; but if that effort fails, the New York Times reports that the Graham amendment is likely to pass the House as well and to be signed by the President.

It's conceivable that some of the GTMO detainees might still have a constitutional right to habeas -- but although the Rasul decision doesn't rule out the possibility, prevailing on such a constitutional claim would probably require the Court to overrule or sharply distinguish Johnson v. Eisentrager. Also, as Steve Vladeck explains here, there are complex Federal-Courts-final-exam-like questions about the constitutionality of the Graham Amendment itself. But the fate of such a constitutional challenge would be decidedly uncertain. Therefore the Graham Amendment could be a very serious development for several of the most important pending and future cases concerning the conflicts with Al Qaeda and the Taliban.

UPDATE: Mark Kleiman asks three questions. I'll provide some tentative answers that I think the proponents of the Graham Amendment would offer, and invite others to chime in in the comments section:

1. Can this be reconciled with the provision in Article 1, Section 9, forbidding the suspension of habeas corpus except in cases of rebellion or invasion?

A: The Graham Amendment almost certainly is intended, and would be construed, to withdraw only statutory habeas jurisdiction -- the sort currently authorized by 28 U.S.C. 2241, according to Rasul -- and not any jurisdiction to hear constitutional habeas petitions. I don't believe there's any caselaw on the question of whether the Suspension Clause of Article I, Section 9 applies to withdrawals of previously conferred statutory habeas -- but I'm doubtful: Typically (but not invariably), Congress can at point B take back a statutory benefit that it had conferred at Point A, including a statutory right to invoke federal court jurisdiction.

To be sure, if I'm right, courts would continue to have jurisdiction to hear constitutionally based habeas petitions. The problem, however, is that it's not clear that aliens overseas have constitutional rights to habeas -- not, in any event, unless the Court overrules or distinguishes Eisentrager.

2. If the Congress can deny aliens access to the courts to challenge their detention, what would keep it from doing the same to citizens?

A: Citizens undoubtedly do have a constitutional right to file habeas petitions in certain circumstances. Congress could eliminate that right, too, but in order to do so, it would have to find that public safety requires it, because of "Rebellion or Invasion." Article I, Section 9.

3. If the principle of court-stripping is valid, is there any Constitutional right that cannot be effectively abolished by a simple Congressional majority?

A. Congress isn't eliminating any substantive right, constitutional or otherwise. It is "only" eliminating a statutory right to file certain habeas petitions. Obviously, eliminating judicial review will have a dramatic impact on the ability of GTMO detainees to enforce any constitutional rights they may have -- but that only raises two further questions: (i) whether aliens overseas have constitutional rights (one of the principal questions in the pending Rasul/Al Odah case), and (ii) whether Congress must provide a judicial remedy for every violation of constitutional right.
Posted 6:24 AM by Marty Lederman [link]