Balkinization: Has Congress unconstitutionally suspended the writ of habeas corpus?

Has Congress unconstitutionally suspended the writ of habeas corpus?

I promised earlier that I would return to the question whether the Military Commissions Act's (MCA) habeas stripping provisions are unconstitutional. Here is the beginning of an answer to this rather difficult question.

Article I, section 9 of the U.S. Constitution states 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."

If the MCA's habeas stripping provisions are unconstitutional, it might be because it violates this clause. That would be because we are not currently in invasion or rebellion, or the public safety does not require it.

The argument that we are not in rebellion or invasion would be that the invasion occurred on September 11, 2001, and the Suspension Clause is designed for emergencies. The emergency has passed, and we are now embarked on a more or less permanent War on Terror. Whatever function the Suspension Clause serves, it is not designed for cases of permanent or indefinite suspension.

In addition to rebellion or invasion, the Suspension Clause also states that the public safety must require suspension. Public safety does not require suspension because the aliens at Guantanamo Bay have been in federal custody for many months, and in some cases for years. They do not offer a present danger to the United States. Allowing people to file habeas petitions in federal court does not endanger the public safety. The public safety test is designed for situations where courts and ordinary legal processes are not available and it is necessary to detain dangerous people immediately until order can be restored. There has been no loss of order in the United States or at Guantanamo Bay that would justify indefinite suspension of the writ.

But these arguments don't settle the matter.

The government might object that the Suspension Clause does not define "habeas corpus." The scope of the writ has been altered by legislation over the years. The government might argue that it is doing nothing more than eliminating non-mandatory statutory grants that are not part of the constitutionally required core.

Generally speaking the scope of constitutional habeas is based on historical practices at the time of the founding, supplemented by appropriate analogical extensions for new situations.

Historically, habeas was available for aliens as well as subjects in Great Britain. This was clearly the case within the boundaries of Great Britain; it also was available in British colonies as well.

How does this history apply to detainees at Guantanamo Bay? Justice Stevens' opinion in Rasul v. Bush found that the Guantanamo detainees had statutory rights of habeas and left open the constitutional scope of habeas. Justice Kennedy's concurrence insisted that "Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities." Equally important, Kennedy also pointed out that testing the legality of executive detention (as opposed to testing decisions of a court or tribunal) was a core function of habeas corpus:

The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status. In Eisentrager, the prisoners were tried and convicted by a military commission of violating the laws of war and were sentenced to prison terms. Having already been subject to procedures establishing their status, they could not justify "a limited opening of our courts" to show that they were "of friendly personal disposition" and not enemy aliens. 339 U. S., at 778. Indefinite detention without trial or other proceeding presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.

Thus the constitutional scope of habeas (protected by the suspension clause) might apply to Guantanamo Bay because the executive seeks to hold detainees indefinitely without trial in a place far from hostilities where the United States has long held exclusive control and plans to do so for the foreseeable future. [UPDATE: Note that Kennedy's point is that habeas for aliens is necessary to tell who is an enemy alien and who is not. As Marty points out, the MCA appears to give the President virtually complete discretion to determine that someone it has seized is an alien enemy combatant because the President says so. Moreover, if the government refuses to hold hearings on whether an alien it has imprisoned is an enemy combatant, the withdrawal of habeas means that there is no practical way to force it to do so.]

Although it is not directly on point, it is worth noting that the Habeas Corpus Act of 1679, styled "An act for the better securing the liberty of the subject, and for prevention of imprisonments beyond the seas," was passed to counter the King's habit of taking people overseas and holding them there in order to prevent the exercise of habeas corpus.

Even if one accepts all this, the Administration might still object that the question whether Congress has complied with the suspension clause is non-justiciable: It is a political question and is left to the complete discretion of Congress. Justice Thomas' dissent in Hamdi noted that the Suspension Clause's requirements might not apply to the present situation, and therefore it might be unconstitutional for Congress to suspend the writ; however, he stated that, even so, courts could not review Congress's decision.

I think that Justice Thomas overstates the case. The purpose of the Clause is to permit *temporary* suspensions to protect public safety. Even if courts give Congress great deference, which they undoubtedly should, it does not follow that no review of any sort is permissible.

The text of Article I, section 9, does not, at least on its face, commit this question exclusively to Congress. Article I, section 9 does not expand Congress's powers, it places limits on them. Nor do the other prohibitions in Article I, section 9 appear to be nonjusticiable. Certainly the courts have regularly passed on whether Congress has passed an ex post facto law.

If Congress's decision to suspend the writ were in all aspects unreviewable, Congress could suspend the writ forever, by declaring that the United States was in a permanent state of emergency. More importantly, it could suspend the writ for only a small class of persons who were politically powerless and politically unpopular.

The latter case is far more important than the former. The electoral process might be sufficient to police and respond to a general suspension of the writ that embraced all citizens. But the electoral process might be much less of a safeguard where Congress suspends the writ selectively for only a small class of citizens. And where Congress suspends the writ for those who have no political rights and are viewed with great suspicion-- aliens-- there is the least chance that the political process will remedy abuses of the Suspension Clause.

I've given some reasons why the MCA violates the Suspension Clause. However, there are still other issues to resolve. The government might object that, under Swain v. Pressley, Congress does not suspend the writ where it provides a remedy that is adequate and effective to test the legality of a person's detention. I don't think that the remedies available under the MCA and the Detainee Treatment Act are either adequate or effective for a significant class of persons or for some important claims that detainees might want to offer. But the issues are quite complex, and I leave a fuller discussion for another day.

In addition, even if aliens enjoy the right of habeas corpus, this does not settle whether their detention comports with the Due Process Clause. The process that the government has offered them might be all the process they are due. (This is what Justice Thomas argued in his dissent in Hamdi with respect to United States citizens; I assume he would make the same argument with respect to non-citizens). Again, I think that this claim is far too quick: At least for some alien detainees at Guantanamo Bay the process the government has offered doesn't comport with the minimum requirements of Due Process, but this claim, too, requires a far more detailed treatment than I can offer here.

I close with this thought: The MCA is important not only because of how it affects the current Guantanamo Bay detainees, but also how it affects every alien in the future, including people living in the United States. There are many non-citizens living in this country who are our friends, neighbors, and members of our community. They are people who you see every day on the streets, people you regularly do business with, people who may cook your food or care for your children. The Military Commissions Act allows the government to seize these people off the streets and detain them because they are non-citizens, and, by accusing them of being unlawful enemy combatants, throw them into a parallel system where neither habeas corpus nor the Bill of Rights apply. It takes even resident aliens who have lived in the country for years out of the criminal justice system and into the world of military prisons and CIA interrogations. The MCA allows the government to make mistakes-- very grievous mistakes-- in detention and interrogation that will severely harm these people and that it may never have to account for. A system of laws that can do this-- even if its primary victims are not citizens-- is inconsistent with the principles of a democratic republic.

Posted 1:37 PM by JB [link]

Comments:

Prior to Rasul, the courts had not extended the writ to captured alien enemy combatants.

At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.14 See, e. g., Swain v. Pressley, 430 U. S. 372, 380, n. 13 (1977); id., at 385-386 (Burger, C. J., concurring) (noting that "the traditional Great Writ was largely a remedy against executive detention"); Brown v. Allen, 344 U. S. 443, 533 (1953) (Jackson, J., concurring in result) ("The historic purpose of the writ has been to relieve detention by executive authorities without judicial trial"). In England prior to 1789, in the Colonies,15 and in this Nation during the formative years of our Government, the writ of habeas corpus was available to nonenemy aliens as well as to citizens.

INS v. St. Cyr, 533 U.S. 289, 301-302 (2000).

http://supreme.justia.com/us/533/289/
index.html

Therefore, it is unlikely that the drafters of the Constitution intended to extend any right to habeas corpus to alien enemy combatants.

As to whether denying habeas to alien enemy combatants is " inconsistent with the principles of a democratic republic," I would note that the US has captured hundreds of thousands of alien enemy combatants over the past two centuries and held them in the US and overseas. I am unaware of the courts ever entertaining habeas petitions from these captures prior to Rasul. Likewise, the British creators of the Great Writ did not extend this right to captured alien enemy combatants. Therefore, the MCA is perfectly consistent with Anglo American democratic republics.

Perhaps with this history in mind, the Court in Rasul extended the writ to enemy combatants for the first time in history by interpreting 28 U. S. C. §2241, not the Constitution. The Rasul Court never reached the question of whether the Suspension Clause somehow implies the alien enemy combatants have a constitutional habeas corpus right. Instead, the Court interpreted 28 U. S. C. §2241 to mean that Congress had extended this right to the enemy.

Taking Justice Scalia's recommendation in dissent to amend the statutes and reverse Rasul, Congress has now categorically made it clear by enacting the MCA that it is not extending habeas rights to alien enemy combatants. It will be interesting to see if the Court again ignores a congressional statute denying it the jurisdiction to hear what inevitably will be more enemy habeas petitions and then attempts to read such a right into the Constitution.

Such a court holding would be a radical departure from centuries of past jurisprudence on the matter. More importantly, a judicial vacation of the rules for captures enacted by the two elected branches of government would be a direct and unconstitutional attack on our democracy.

# posted by

Bart DePalma : 4:58 PM

Bart, I think, begs the question. The question is whether an alien seized and placed in a military prison *is* an enemy combatant. If the government can simply declare any alien an enemy under section 948, and thereby deny access to habeas corpus, the language from St. Cyr that he quotes would be meaningless.

# posted by

JB : 5:14 PM

Well, but Professor Balkin, why isn't the test "declare in good faith," i.e., if the government declares in good faith that it believes that someone is an enemy combatant, that ends the discussion. Because, despite what some of the more hysterical commentators here and elsewhere say, I can assure you that no one at Guantanamo is there because he is a political opponent of George Bush, or the like.

On the day when the executive ceases to act in good faith, that will be the day for the courts to intervene.

# posted by

sean : 5:57 PM

JB said...

Bart, I think, begs the question. The question is whether an alien seized and placed in a military prison *is* an enemy combatant. If the government can simply declare any alien an enemy under section 948, and thereby deny access to habeas corpus, the language from St. Cyr that he quotes would be meaningless.

The Supreme Court has conceded that the military can detain enemy combatants for the duration of a conflict so long as they hold status hearings to confirm the detainee is indeed an enemy combatant.

Therefore, I do not think the Court is going to challenge the military designation of a detainee as an enemy combatant for the purposes of determining whether the detainee is eligible for habeas corpus.

# posted by

Bart DePalma : 6:25 PM

"On the day when the executive ceases to act in good faith, that will be the day for the courts to intervene."

It is unclear why we have a BOR etc. since obviously we can just trust the executive. I'm unclear why this "trust them" principle is limited to this narrow area.

It surely is amazing coming from people, not saying this person, who wouldn't trust let's say Clinton (does it only apply to certain presidents?) further than they could throw 'em.

As to BP, I think the point is that the post-WWII world is a bit different [the very theme of Rasul/Hamdan, though Stevens' boss back then along with a couple other justices felt we should have defended such people at the time too], especially as to int'l law and treatment of aliens.

I also am not really sure of some past incident in our history really comparable to the current sitatuation. Also, JB is right, this "assume guilty" philosophy is a bit too easy. And, all those "hundreds of thousands" tended to be legal combatants.

Again, the comparison is rather inexact. The times have changed some even since 1945. Time to comprehend the point.

# posted by

Joe : 6:32 PM

This comment has been removed by a blog administrator.

# posted by

Joe : 6:40 PM

I'm not going to rely too much on dicta Stevens did not even write but the point is of some note.

Honestly, I doubt he really would support the point that when "the writ is suspended, the Government is entirely free from judicial oversight" if directly forced to address the point.

But, that's just conjecture. Anyway, if he did, he would be wrong.

# posted by

Joe : 6:42 PM

"The prohibition against their making any ex post facto laws was introduced for greater caution, and very probably arose from the knowledge, that the Parliament of Great Britain claimed and exercised a power to pass such laws, under the denomination of bills of attainder, or bills of pains and penalties; the first inflicting capital, and the other less, punishment. These acts were legislative judgments; and an exercise of judicial power. Sometimes they respected the crime, by declaring acts to be treason, which were not treason, when committed, at other times, they violated the rules of evidence (to supply a deficiency of legal proof) by admitting one witness, when the existing law required two; by receiving evidence without oath; or the oath of the wife against the husband; or other testimony, which the courts of justice would not admit; at other times they inflicted punishments, where the party was not, by law, liable to any punishment; and in other cases, they inflicted greater punishment, than the law annexed to the offence. The ground for the exercise of such legislative power was this, that the safety of the kingdom depended on the death, or other punishment, of the offender: as if traitors, when discovered, could be so formidable, or the government so insecure! With very few exceptions, the advocates of such laws were stimulated by ambition, or personal resentment, and vindictive malice. To prevent such, and similar, acts of violence and injustice, I believe, the Federal and State Legislatures, were prohibited from passing any bill of attainder; or any ex post facto law. * * *

"I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive."

Calder v. Bull, 3 U.S. 386 (1798), 389-391.

# posted by

Charles Gittings : 7:14 PM

Well, but Professor Balkin, why isn't the test "declare in good faith," i.e., if the government declares in good faith that it believes that someone is an enemy combatant, that ends the discussion.

To quote a famous American, "Trust, but verify."

You seriously believe that this Administration has acted "in good faith" in its statutory enforcement obligations?

I can assure you that no one at Guantanamo is there because he is a political opponent of George Bush, or the like.

In some sense ALL of them are there for that reason.

# posted by

Mark Field : 8:07 PM

AT's discussion leading to a view of habeas as misced with due process places the focus on the individual living within our society. To the degree that 'alien' detainees are stateless, they, too, are individuals. Congress has missed identifying these prisoners as persons; clearly, in the heated politics of the moment congress has voted 2:1 to keep the courts from listening, to keep the prisoners from telling the world their testimony was torture elicited. In a way congress has decided to adopt the immoral judicial values of its stateless adversaries; a very incongruous and ill fitting accretion to what had been a noble experiment in human dignity.
While there had been no invasion, there could be none; not in the sense the colonists conceived of disruption of civil peace in the XVIII century by an invader. And, while the detainees mostly are aliens, their rebellion is against the world economic and social order of our time; so, to the measure the US is a leader in globalized civilization, the detainees represent rebels against that matrix.
CG's reminder about the ex post facto defect at the root of the MCA is one more reason congress has tried to limit this pseudo martial law construction from undergoing any further scrutiny in the courts.

# posted by

JohnLopresti : 4:06 AM

Ahhh, IC that "Bart" is up to his old tricks: Misciting law for propositions he's making up out of thin air:

Sez he:

Prior to Rasul, the courts had not extended the writ to captured alien enemy combatants.

[quoting from St. Cyr]: "At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.14 See, e. g., Swain v. Pressley, 430 U. S. 372, 380, n. 13 (1977); id., at 385-386 (Burger, C. J., concurring) (noting that "the traditional Great Writ was largely a remedy against executive detention"); Brown v. Allen, 344 U. S. 443, 533 (1953) (Jackson, J., concurring in result) ("The historic purpose of the writ has been to relieve detention by executive authorities without judicial trial"). In England prior to 1789, in the Colonies,15 and in this Nation during the formative years of our Government, the writ of habeas corpus was available to nonenemy aliens as well as to citizens."

INS v. St. Cyr, 533 U.S. 289, 301-302 (2000).

Sorry, "Bart": The case you cited decided that courts do have jurisdiction to hear habeas petitions from aliens such as St. Cyr.

They did not decide (nor did they even state in the quoted snippet) that "alien enemy combatants" (or accused ones) do not have such rights.

"Bart"'s typical MO here, folks: Miscite law.

Cheers,

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