Balkinization  

Tuesday, January 23, 2007

Habeas Corpus and the Tyranny Gap

JB

Several people have asked about Chief Justice Marshall's statement in the 1807 case of Ex Parte Bollman that the right of habeas corpus depends on statute even though it should be interpreted according to the common law: "for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law." 8 U.S. 75, 94-95. Doesn't this prove that the Constitution secures no right to habeas corpus, and that habeas corpus is purely a creature of statute? If so, wasn't Attorney General Gonzales technically correct that there is no constitutional right to habeas?

The answer is no.

Let me first point out that in the current litigation over the Military Commissions Act of 2006 (MCA) the Bush Administration is not taking Gonzales' position. It is arguing that either the MCA withdraws rights that fall outside of the minimum constitutional requirements of habeas corpus or that the remedy the MCA offers is an adequate substitute for habeas. Let me repeat: even Gonzales's own Justice Department is not making as radical a claim as he apparently made before the Senate Judiciary Committee. The arguments in this case start with the assumption that there is a constitutional core of habeas that Congress may not rescind without falling afoul of the Constitution, even if federal habeas jurisdiction is provided by statute. The dispute in the MCA litigation is the scope of that constitutional core.

How do we know that there is such a constitutional core?

The drafters of the 1787 Constitution chose language that preserved the common law right of habeas corpus rather than specifically fashioning a new constitutional right. As a result, the 1787 Constitution left in place the common law right of habeas and restricted Congress's ability to suspend it. And, as we shall see, there are structural reasons why, when elements of sovereignty were transferred from the states to a new federal union, the principle of non-suspension meant that habeas corpus had to apply to a new series of situations.

To understand Chief Justice Marshall's remark in Ex Parte Bollman, we must remember that the 1787 Constitution does not, on its face, require that there be any federal courts except for the Supreme Court. Congress soon created such courts, and created jurisdictional statutes which, among other things, gave these courts the right to hear writs of habeas corpus.

However, if Congress had not created any lower federal courts, there would still be a common law right of habeas corpus available in state courts. Imagine that the governor of a state imprisoned a political opponent by declaring him an enemy of the state. This, of course, is the paradigm case for why the English common law created habeas-- to limit the King's ability to imprison people outside of the rule of law. In this case, the common law courts would be able to issue writs of habeas corpus to the governor.

Now imagine, after the ratification of the 1787 Constitution, that the President of the United States declares some one an enemy of the state and throws him in jail. Suppose further that there are no federal courts except the Supreme Court. Presumably either the Supreme Court would have the authority to issue a common law writ of habeas under its original jurisdiction (But cf. Marbury v. Madison) or, more likely, state courts could issue such a writ, with appellate review by the U.S. Supreme Court.

But could the state courts do this, you may wonder? How could they have jurisdiction to compel the President to do anything? Recall that people were very concerned that the new federal government would destroy the liberties of the citizenry. It is unthinkable that the ratifiers would have allowed the new President to be free from the writ of habeas corpus when even the King of England, George III, was limited by that writ.

Thus, if there had been no federal courts, the states would retain not only the right to restrain their own officials, but also the officials of the new federal government for violations of law, subject always to review by the Supreme Court of the United States.

As it turned out, Congress created federal courts almost immediately, and gave them the power, by statute, to issue writs of habeas corpus. In this sense Marshall's statement in Ex Parte Bollman is technically correct that the power of *federal* courts to issue writs comes from statute, and not directly from the Constitution. But it does not follow that the power of *state* courts to issue writs of habeas corpus comes only from statute. Moreover, it does not follow that Congress may limit the power of federal courts to issue writs of habeas corpus without running afoul of the Suspension Clause. Here's why:

First, the Supreme Court later held in Tarble's Case, 80 U.S. 397 (1872), that state courts do not generally have the power to issue writs of habeas corpus to federal officials acting under claim of or color of federal authority. Justice Field argued that otherwise, no federal decision or action could be final unless it received the consent of all the courts in all of the states. Given that in 1872, the country was still in the middle of Reconstruction, with federal officials despised in the newly conquered South, Field's reasoning made a lot of sense. If state courts in South Carolina and Georgia could repeatedly haul federal officials into court on writs of habeas, federal enforcement of law in the South would come to a standstill.

Some people think Tarble's case is wrongly decided-- an aberration caused by the features of the Reconstruction period. It also makes sense only if you assume that there had to be lower federal courts; but for the moment, let's assume that it is correct. If Tarble's Case is correct, it would mean that Congress was constitutionally *obligated* to vest habeas jurisdiction in the federal courts to the extent that common law state courts collectively enjoyed in 1789. Why? Because otherwise the Suspension Clause would be completely undermined. The President would be able to do what the King of England could not do: throw people in jail under claim of executive authority without any right of judicial redress. The President could easily become a tyrant-- precisely the thing that the framers and ratifiers of the 1787 Constitution feared. It is simply unthinkable that the people who ratified the 1787 Constitution would have agreed to a President who could do what even George III could not do.

So if Tarble's case is correct, then Congress has a constitutional obligation to create statutory jurisdiction for habeas in the federal courts.

Second, even if Tarble's case is incorrect and state courts can issue habeas orders to federal officials, there might be other reasons why the Constitution required Congress to create federal habeas jurisdiction. In Ex Parte Bollman itself, Marshall noted that

It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it.'

Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts, the power of awarding writs of habeas corpus.

Why would Congress feel an obligation to create federal habeas if state courts could issue writs of habeas corpus against federal officials?

Assume that Tarble's case is wrong and that state courts could issue these writs. The 1787 Constitution created a new federal government with new powers superimposed over the old state governments, and claimed some of their powers-- particularly in the areas of foreign affairs, maritime regulation, and the creation and maintenance of federal territories.

These new powers, and the creation of a new government to exercise them, created new classes of cases-- and new possibilities for executive abuse-- where habeas might be needed. For example, the President might have arrested a person in the federal territories (not controlled by any state) or on the high seas; or, as the English Kings sometimes did, dragged their political opponents outside the borders of the country to attempt to escape the jurisdiction of the English courts. Moreover, the Constitution authorized the creation of new federal crimes, including treason against the United States, which was the subject of Ex Parte Bollman itself.

For some or all of these new situations, Congress might want to vest jurisdiction to test the legality of federal actions solely in the federal courts. Moreover, now that these new situations and new powers existed, there was a real question whether state courts could issue writs to restrain these illegal exercises of executive power. For example, states might not have jurisdiction over what happened in the federal territories, including the District of Columbia. If the suspension clause merely preserved the historical scope of habeas jurisdiction *in each state*, then the President would be free to drag people into federal territories (including not only military bases but also the District of Columbia) and keep them in federal prison there forever without charges. Put a different way, the new federal government created the possibility of a "tyranny gap" (to use an expression of my friend Akhil Amar). Once again, the President would have greater powers than the King of England, George III.

To avoid this result, there was an easy and obvious structural argument: The Suspension Clause should be read to hold that preservation of the common law writ of habeas corpus must include the power of federal courts to issue the same sorts of writs against the federal government that states could have issued against their own governors and executive officials before 1789, or that English courts could have issued against the Crown. (If Congress did not choose to create federal courts, the principle would require that Congress vest this jurisdiction in some group of state courts, most likely with a right of appeal to the U.S. Supreme Court. But in 1789 Congress made its choice: it created a federal judiciary and gave it jurisdiction over habeas.)

Now we see why Chief Justice Marshall, even before Tarble's Case, thought that Congress felt an obligation to create federal habeas jurisdiction. Ex Parte Bollman was a prosecution for treason arising in a federal territory, the District of Columbia. It was one of these new cases created by the formation of a new central government superimposed over the states, a situation where state jurisdiction might not be available. As Marshall said,"for if the means be not in existence [to deal with such cases], the privilege itself would be lost, although no law for its suspension should be enacted."

Hence, the basic principle of the suspension clause is: if courts in a pre-ratification state government, or in the United Kingdom, had jurisdiction to bring writs of habeas corpus against their executive officials, either state courts or federal courts (if state courts lack jurisdiction) must have a structurally equivalent power. Congress has an obligation to create federal habeas jurisdiction sufficient to achieve this result. This principle outlines the constitutional core of habeas corpus. It is a matter of constitutional right, and it may not be abridged by Congress except under the conditions outlined in the Suspension Clause.

Call this principle the principle of structurally equivalent sovereignty, or, more to the point, the principle of structurally equivalent tyranny. This principle avoids the tyranny gap that would otherwise have been created by the formation of a new federal government. The principle would have made a great deal of sense at the time of the ratification of the Constitution. At the time of the Revolution, Great Britain was a major empire and maritime power, with colonies and military forces strewn around the known world. There was a great deal of mischief the King of England could do outside the territory of the British Isles, and courts were needed to keep him in line. The new American nation was becoming a lot like its British predecessor. It too, was developing into a maritime power, and it too, was amassing a sizeable quantity of new federal territory, some ceded from the states, others newly acquired. The Northwest Territory, created in 1787 before the 1789 ratification, was larger than any of the existing states. Indeed, after the Louisiana Purchase of 1803, the scope of federal territories was larger than all of the existing states put together. The idea that habeas corpus did not apply to this vast territory-- much less the nation's capitol-- would be unthinkable. The structural principle I've outlined here is the best way to make sense of what the suspension clause did-- and what it required-- for an emerging continental and naval power.

In addition to the constitutional core of habeas, Congress may create additional habeas jurisdiction. This is sometimes confusingly called "statutory habeas," to distinguish it from "constitutional" habeas. As we have seen all federal habeas jurisdiction is statutory, but some is required as part of the constitutional core.

Although Congress must pass statutes to give lower federal courts power to issue writs of habeas corpus, it does not follow, as Attorney General Gonzales seemed to suggest, that individuals have no rights of habeas corpus guaranteed by the Constitution. There is a core of habeas protection drawing on the common law that must exist somewhere in the legal system, and must be enforceable by some courts, whether federal or state. Congress may expand habeas jurisdiction beyond that constitutional core.

The issue at stake in the Guantanamo Bay litigation is whether the constitutional core of habeas applies to aliens who have been accused of being enemies of the state and confined in territory controlled by the United States. If only statutory habeas applies to the Guantanamo Bay detainees, Congress may withdraw habeas jurisdiction.

The Supreme Court has not squarely addressed this issue in Rasul v. Bush. Although the majority opinion suggested that such persons were protected by the common-law habeas right protected under the Constitution, its specific holding was only that-- in the legal context prior to the MCA-- they were at the very least entitled to statutory habeas rights.

If the MCA's alteration of habeas falls within the constitutional core of habeas, Congress and the President must either demonstrate that we are in a period of rebellion or invasion, or that it has offered an adequate substitute for habeas. Not surprisingly, the Bush Administration's major argument before the courts is that the Combatant Status Review Tribunals-- and the limited appeal from the CSRTs to the D.C. Circuit-- offer an adequate substitute for habeas.

I've given my reasons why I think the constitutional core of habeas applies to aliens within the United States and to the Guantanamo Bay detainees here. That is why I think there are serious problems of constitutionality raised by the MCA. We are in a position remarkably similar to that of the British Empire before the American Revolution; just as King George was limited by the British courts in how he could treat aliens in British territories held overseas, so too President George is limited in how he can treat aliens today.

Comments:

Professor Balkin:

Thank you for your excellent analysis of the Suspension Clause, with which I largely agree. However, I do not see the basis for your conclusion that the Constitutional core habeas right extends to alien enemy combatants in Gitmo seeking to challenge their detentions for the duration of the war.

If "the drafters of the 1787 Constitution chose language that preserved the common law right of habeas corpus... and restricted Congress's ability to suspend it," then the issue raised by the Gitmo detainees is straight forward:

Whether alien enemy combatants enjoyed habeas corpus review of their detention as prisoners for the duration of the war under the common law in effect at the time the Constitution was enacted.

The answer is no.

The Gitmo detainees have not offered a single case of which I am aware which extends habeas corpus to prisoners of war.

Indeed, the only case considered to date by the Supreme Court and the DC Circuit which addresses the question denied habeas review to an alien captured on an enemy French ship who was being held by the King as a POW during Britain's war with France. King v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759). The Schiever court held: "[Petitioner] is the King’s prisoner of war, and we have nothing to do in that case, nor can we grant an habeas corpus to remove prisoners of war.” Footnote 11 of Hamdan v. Rumsfeld, No. 04-1519 (D.D.C. 12/13/2006).

http://natseclaw.typepad.com/natseclaw/files/
hamdan_121306_order.pdf
 

I confess that I find truly bizarre the argument that the Constitution does not in effect establish a right to habeas (at least for citizens or perhaps anyone else recognized as a member of the "American community," such as resident aliens. I am teaching the first classes of my course in constitutional law, which involves a discussion, among other things, of whether there are parts of the Constitution that really are clear in their meaning (besides the "hard-wired" parts that I emphasize in my book, which do not, alas, come up in most law school courses). It would seem to me that the notion that habeas is a constitutionally protected right has to be "clear" inasmuch as the Constitution goes out of its way to give power to Congress to suspend it. It would literally make no sense to say that Congress can suspend habeas if the constitutional presumption were not that in the absence of such suspension, under the quite limited conditions set out in the text, habeas were available.

I literally do not understand how anyone who proclaims him/herself to "take text seriously" can view Gonzales's argument with the slightest seriousness. What am I missing?
 

In response to Bart:

1. The issue isn't *necessarily* only "whether alien enemy combatants enjoyed habeas corpus review of their detention as prisoners for the duration of the war *under the common law in effect at the time the Constitution was enacted*."

That's the minimum. It could be that constitutional habeas also pertains to certain detentions that were not covered by the writ in 1789. The Court reserved that question in St. Cyr, 533 U.S. at 301.

2. As for whether constitutional habeas protects alleged enemy aliens, well, they were entitled to such habeas in Quirin and Yamashita; in both cases, the Court rejected the government's argument that the alleged enemy aliens had no habeas right to get into court.

The best argument I've yet seen on the history of habeas rights for enemy aliens (including POWs) is at pages 10-20 of this recent amicus brief written by, inter alia, Gerry Neuman, Harold Koh and Sarah Cleveland:

http://www.law.yale.edu/documents/pdf/News_&_Events/Al_Marri_Amicus_Brief.pdf
 

I literally do not understand how anyone who proclaims him/herself to "take text seriously" can view Gonzales's argument with the slightest seriousness. What am I missing?

I take it what's missing is an accurate assessment of exactly what "Gonzales's argument" was. This is what he said at the hearing:

GONZALES: The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away. But it’s never been the case, and I’m not a Supreme —

SPECTER: Now, wait a minute. Wait a minute. The constitution says you can’t take it away, except in the case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus, unless there is an invasion or rebellion?

GONZALES: I meant by that comment, the Constitution doesn’t say, “Every individual in the United States or every citizen is hereby granted or assured the right to habeas.” It doesn’t say that. It simply says the right of habeas corpus shall not be suspended except by —

As I read this, Gonzales was not saying that there's no constitutional protection for habeas corpus. Nor was he aruing that the MCA is constitutional because there's no substantive right to habeas in the first place. Instead, I think he was simply making a (perhaps rather pedantic) descriptive claim. And that claim is undoubtedly correct. The Constitution does not in fact contain "an express grant of habeas." Nor does it "say" that every individual in the United States is assured the right to habeas. These statements are true regardless of whether one accepts JB's learned argument that the Framers assumed that of course the common law habeas writ would be available, and meant through the Suspension Clause to limit Congress's power either to displace the common law or take away the power of the state courts to grant the writ.

In short, I see nothing in the AG's remarks to indicate that he believes that Congress has unfettered constitutional power to preclude habeas claims. Instead, I think he would agree that the argument is what is the content of the common law writ to which the Suspension Clause applies. That's the real issue and it's not an easy one. The whole nasty firefight over the AG's supposed misunderstanding of basic constitutional principles seems to me a regretable distraction from what the debate really ought to be about.

As for Marty's points about Quirin and Yamashita, it's worth noting that, in the former case, the prisoners were actually in the United States proper, and that, in the latter, the Supreme Court expressly relied on the habeas statute as the basis for its jurisdiction. Thus, I'm not sure those cases tell us much about the constitutionality of Congress expressly precluding aliens held at Guantanamo from filing habeas petitions. (Though I agree that as applied to aliens held inside the US, the government's argument seems very problematic.)
 

It will be interesting to see if Gonzales will try to articulate the argument that his pedantic comments implied. It does not make sense for someone to say what Gonzales said unless one intends to argue that the Constitution does not in effect establish a right to habeas even for citizens. I would bet, however, that the Bush administration won't really say that in the end.
 

Professor Lederman:

Thank you for the response. Please allow me to reply to your points.

That's the minimum. It could be that constitutional habeas also pertains to certain detentions that were not covered by the writ in 1789. The Court reserved that question in St. Cyr, 533 U.S. at 301

If you are correct in your contention that the Suspension Clause incorporated the common law writ in existence at the time of the enactment of the Constitution (an argument with which I agree), what would be the legal basis for holding that the scope of the constitutionally protected writ exceeds that in existence at the time of the enactment?

The fact that the Court avoided ruling on that question in the past is not a legal argument for the proposition.

As for whether constitutional habeas protects alleged enemy aliens, well, they were entitled to such habeas in Quirin and Yamashita; in both cases, the Court rejected the government's argument that the alleged enemy aliens had no habeas right to get into court.

I am not arguing that aliens in general and alien enemy combatants in particular do not have access to the habeas writ to challenge any and all detentions. Rather, I am contending that alien enemy combatants may now use the writ to challenge their detention as POWs for the duration of the war.

In Quirin and Yamashita, the Court permitted the alien petitioners to use the writ to challenge the legal basis of the military commissions which convicted them of criminal acts. In Quirin, the Court observed: "And neither the 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."

These rulings are well within the scope of the common law writ in existence at the time of the enactment of the Constitution, which allowed habeas review of detentions based on charges under the criminal law. Quirin and Yamashita were granted access to the writ as criminal convicts, not as POWs. The Government brought these alien enemy combatants within the scope of the writ when it prosecuted them for war crimes.

However, detentions of captured alien enemy combatants for the duration of the war are not based on criminal charges. Habeas corpus review was rejected under these circumstances under British common law and was never extended to French combatants during the French and Indian Wars nor for the British and Hessian combatants during the Revolution by the Colonies before the enactment of the Constitution.

The best argument I've yet seen on the history of habeas rights for enemy aliens (including POWs) is at pages 10-20 of this recent amicus brief written by, inter alia, Gerry Neuman, Harold Koh and Sarah Cleveland:

Your post nipped off the URL. Here is the full link.

http://www.law.yale.edu/documents/pdf/
News_&_Events/Al_Marri_Amicus_Brief.pdf

The amicus brief is very interesting, but spends most of its time discussing inapposite case law concerning noncombatant aliens.

The only cited case law applicable to prisoners of war were Case of Three Spanish Sailors, 96 Eng. Rep. 775, 776 (C.P. 1779), and Rex v. Schiever, 97 Eng. Rep. 551 (K.B. 1759). The amicus briefers claim that the fact that the courts considered the petitions before rejecting them because the petitioners were prisoners of war means that the writ allows courts to conduct an independent determination of the POW status of petitioners.

However, the petitioners in these cases were all self admitted POWs and the courts made no independent status determinations. Moreover, the language used by the Schiever court does not indicate a desire by that court to perform an independent status determination: "[Petitioner] is the King’s prisoner of war, and we have nothing to do in that case, nor can we grant an habeas corpus to remove prisoners of war.”
 

Prof. Balkin says:

Thus, if there had been no federal courts, the states would retain not only the right to restrain their own officials, but also the officials of the new federal government for violations of law, subject always to review by the Supreme Court of the United States.

I fail to understand why a prisoner must, in "Core Habeas," have a court available to provide him/her a Writ aside from the Supreme Court. (In this example, these other cours are the state courts.)

Say the Congress never created inferior courts. And, as in Prof. Balkin's hypo, the president jails somebody arbitrarily. If that prisoner can petition the Supreme Court for relief, why would that remedy be inadequate?
 

Well, this post illustrates well the pointless hypocrisy of Prof. Balkin. No doubt, after several thousand words exegesis, we can make Justice Marshall's rather offhand statement into something highly intelligent that accords closely with what Prof. Balkin thinks. Of course, several thousand words exegesis by, say, Richard Posner, could make Gonzales's offhand remark into something eminently reasonable and almost unarguable. Alternatively, we can turn Gonzales's offhand remark into a precursor to fascism. What is the point of that exercise?
 

Madisonian...As for Marty's points about Quirin and Yamashita, it's worth noting that, in the former case, the prisoners were actually in the United States proper, and that, in the latter, the Supreme Court expressly relied on the habeas statute as the basis for its jurisdiction. Thus, I'm not sure those cases tell us much about the constitutionality of Congress expressly precluding aliens held at Guantanamo from filing habeas petitions.

Doesn't Rasul seem to suggest otherwise?
 

Sean... What is the point of that exercise?

Like all exercises, it's designed to improve a capacity or skill, and in this case, to dialogue and reach a consensus. It's a free country and it's your apple. You can polish that apple up as shiny as you please and leave it on any law professor's desk that you choose.

:-)
 

JT:

The holding of Rasul is that the habeas *statute* (28 USC 2241) allowed persons held at Guantanamo to come to federal court to challenge their detention. Justice Stevens' opinion for the Court does not purport to resolve the constitutional question that now looms. To be sure, there is language in both the majority opinion and in Justice Kennedy's concurring opinion suggesting that there may be five votes for the proposition that the "constitutional" core of habeas extends to places like Guantanamo. Such a holding would require the Court to distinguish (or perhaps overrule) Johnson v. Eisentrager, but I don't think it could derive much, if any, support from the fact that habeas claims were heard (albeit rejected on the merits) in Quirin and Yamashita.
 

Prof. Balkin:

This in some ways mirrors the argument about the jurisdictional specifications of Article III, Section 2:

"In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

Republicans seeking to prevent adverse review of legislation or executive acts have suggested that this provision allows for "jurisdiction stripping" such as to allow Congress to deny all jurisdiction (both original and appellate) to any federal court to hear certain types of cases. This would allow the legislature to, in effect, remove some issues from resolution by the courts and in effect place them outside of Constitutional review and protection.

My contention has long been that this section, of necessity, must just allow for allocation of original and appellate jurisdiction between the courts in the interest of expediency or necessity and is in no way a grant of power to deny all jurisdiction of an otherwise justiciable case.

Perhaps you'd like to cover this subject as well in a future column.

Cheers,
 

Madisonian said:

As for Marty's points about Quirin and Yamashita, it's worth noting that, in the former case, the prisoners were actually in the United States proper, and that, in the latter, the Supreme Court expressly relied on the habeas statute as the basis for its jurisdiction. Thus, I'm not sure those cases tell us much about the constitutionality of Congress expressly precluding aliens held at Guantanamo from filing habeas petitions.

But I thought that the U.S. Supreme Court had looked askanse at the "jurisdictional" dodge* that the gummint came up with WRT Guantanamo, and said that while Cuba might be nominally "sovereign" over Cuba, the U.S. was running on the naval base, and U.S. law and courts did apply.

Cheers,

* -- more accurately, using "lack of soverereignty" to argue that the courts were powerless to review the cases of prisoners held there despite the obvious and undisputed fact that U.S. courts could and did function on the Guanatanamo base
 

"Bart" DePalma:

The only cited case law applicable to prisoners of war were Case of Three Spanish Sailors, 96 Eng. Rep. 775, 776 (C.P. 1779), and Rex v. Schiever, 97 Eng. Rep. 551 (K.B. 1759). The amicus briefers claim that the fact that the courts considered the petitions before rejecting them because the petitioners were prisoners of war means that the writ allows courts to conduct an independent determination of the POW status of petitioners.

However, the petitioners in these cases were all self admitted POWs and the courts made no independent status determinations. Moreover, the language used by the Schiever court does not indicate a desire by that court to perform an independent status determination: "[Petitioner] is the King’s prisoner of war, and we have nothing to do in that case, nor can we grant an habeas corpus to remove prisoners of war.”


If it is true as "Bart" claims ("Bart" said, "the petitioners in these cases were all self admitted POWs") that the petitioners were indeed prisoners of war in these cases (and this fact is dispositive), these cases certainly can't be used against the proposition that courts may entertain such petitions to determine whether the petitioner is in fact such a "prisoner of war". That would be absurd, logically.

But of coure, that doesn't prevent our esteemed "Bart" from making such a claim.

Cheers,
 

This is my first time posting on this or any legal blog. Since 2002 I have been amazed at the results of the Padilla case. The idea that any court would recognize a declared right of the president, on his word only, to hold a US citizen without any outside leagal contact is unreal.

This whole discussion about habeas corpus seems of little concern if there exists now courts who think that the president has the above stated power.

As of now the president is still claiming to have this power even though the USSC did not take up the Padilla case. How does the Padilla case ever get reviewed properly now and this so called right of the president refuted???
 

I'm too tired to even read all of this, but I have some questions for Jack, Marty, and Sandy et al...


* Let's suppose we have an attack by Body Snatchers such that every legislator in the United States is turned into a zombie programmed just like Alberto Gonzales is. The congress and all 50 states immediately disband every court in the country so that there is no judge anywhere to grant a writ of habeas. How did the government get the person in the first place without a warrant??


* Oh, that's right, they don't think they need warrants, do they?

But wait: doesn't the 13th amendment prohibit slavery?

A slave was a "negro" determined by the color of the skin according to the judgement of somebody.

Under Bush a "terrorist" is exactly somebody determined to be something which possesses no rights whatever. Sounds like a slave to me.

* If there are no courts, what's the ancient default? The whole tribe or something?
 

Professor Volkh offers an interesting analysis of the AG's written statement to the committee and the Eisentrager and Rasul cases to explain where the AG was coming from in the heated oral exchange.

http://volokh.com/posts/1169693859.shtml

Of particular interest was a passage in the Rasul decision which attempted to distinguish the Eisentrager Court's denial of habeas corpus to detainees in Germany by noting that the Eisentrager held that these detainees lacked constitutional habeas corpus rights rather than the statutory rights which the Rasul majority found (invented?) for the first time in the statute's 200 year history.

Given that Congress made it clear in the DTA and MCA that alien enemy combatants have no statutory habeas corpus rights, the Rasul majority's attempt to distinguish Eisentrager as a constitutional law case may come back to bite them if they are asked to invent a constitutional habeas right for these Captures.
 

It would seem to me that the notion that habeas is a constitutionally protected right has to be "clear" inasmuch as the Constitution goes out of its way to give power to Congress to suspend it. It would literally make no sense to say that Congress can suspend habeas if the constitutional presumption were not that in the absence of such suspension, under the quite limited conditions set out in the text, habeas were available.

The major alternative theory, embraced by Chemerinsky, Ducker, and others, is that the habeas clause limited federal suspension of the states' writs of habeas corpus. The text and history of the provision are perfectly consistent with that theory, too.

I literally do not understand how anyone who proclaims him/herself to "take text seriously" can view Gonzales's argument with the slightest seriousness. What am I missing?

To take text seriously is to pay proper heed to the history of its drafting. The habeas provision, wholly divorced from its history, may lead only to the conclusion you identify. But when you consider its drafting and the history that followed shortly thereafter, the provision allows for at least two fair interpretations.
 

AG Gonzalez controversial statements were predicated by Justice Scalia saying the same thing (dicta?) in INS v. ST. CYR 533 U.S. 289, 336-337 (2001).

The Suspension Clause of the Constitution, Art. I, §9, cl. 2, provides as follows:

“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.”

A straightforward reading of this text discloses that it does not guarantee any content to (or even the existence of) the writ of habeas corpus, but merely provides that the writ shall not (except in case of rebellion or invasion) be suspended.

 

After the Real ID Act we have seen Congressional substantiation of Habeas restricting assertions in right leaning Circuit Courts, like the Tenth, that has virtually destroyed Habeas review of immigration detention. Now we have a new program by the Bush Administration of removing immigrants from their homes, then transporting them to very foreign jurisdictions where they are pressured to give up their rights to defend themselves in Immigration Court, take a voluntary departure, and forever after be barred from Immigration Court by the Reinstatement of Deportation rules that allow the ICE on the spot adjudication powers to deport. This new program has resulted in 200 detainees to be moved from Colorado and their families, careers and homes to El Paso, Texas, where the Immigration Courts ignore all civil procedure requirements for venue considerations and ignore or deny Motions to Change Venue without exception. The weakness of civil venue rights may be the underlying problem, especially as applied to immigrant cases; or this issue may really illuminate the fiction that Immigration Courts are not really civil in nature, but criminal since they routinely hand out banishments for 10 years to life, since IIRAIRA in 1997. In either analysis, in my opinion, a reasonable counsel must come to the conclusion that due process is being avoided intentionally and that Habeas really is "dead" for those residents of the United States currently subjected to the Republican anti-immigrant reelection campaign. Please correct me and give me hope (and citations!).
 

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