Balkinization  

Monday, February 26, 2007

Faulty History at the D.C. Circuit

Guest Blogger

Jonathan Hafetz
Litigation Director, Liberty and National Security Project
Brennan Center for Justice at NYU School of Law

The District of Columbia Circuit’s 2-1 decision in Boumediene v. Bush directing dismissal of Guantanamo Bay detainee habeas corpus petitions turned partly on a historical assessment of the scope and meaning of the Great Writ. The judges all agreed that section 7 of the Military Commissions Act of 2006 (“MCA”) eliminated habeas jurisdiction over petitions filed by or on behalf of aliens detained at Guantanamo. Writing for the court, Judge A. Raymond Randolph found that the MCA did not violate the Constitution’s Suspension Clause because, he concluded, the writ of habeas corpus was not available to non-citizens detained outside the sovereign territory in 1789. Dissenting Judge Judith Rogers disagreed, finding that the writ would have been available in a territory like Guantanamo at the time of the nation’s founding. The MCA was void, she concluded, because Congress had eliminated habeas jurisdiction without suspending the writ or providing an adequate and effective substitute.

What role history will play at the Supreme Court remains uncertain. But it is useful to identify some shortcomings in the court’s analysis and in the inferences drawn from the historical record.

To begin with, the D.C. Circuit treated as an open question whether the writ would historically have extended to a territory like Guantanamo, where the United States exercises complete and exclusive jurisdiction and control, but not sovereignty. That question, however, was already answered by Rasul v. Bush (542 U.S. 466 (2004)). There, the Supreme Court concluded that the “[a]pplication of the habeas statute to persons detained at the [Guantanamo naval] base is consistent with the historical reach of the writ of habeas corpus.” Importantly, in Rasul the Court rejected the government’s argument that the writ’s reach at common law turned on territorial sovereignty rather than on “the practical question” of the crown’s control over the particular territory. The Court relied, for example, on King v. Cowle (97 Eng. Rep. 587 (K.B. 1759)), where Lord Mansfield explained that the writ would run to territories “under the subjection of the Crown.”

The D.C. Circuit also misconstrued the historical record. Contrary to the court’s conclusion, and as noted by the dissent, the common law writ was available in territory where the Crown exercised de facto but not de jury sovereignty. In India, English courts issued writs of habeas corpus to non-citizens unlawfully detained by crown officials. Moreover, in India Britain intentionally delayed the assertion of formal sovereignty over crown-controlled territories for decades after judges had begun issuing writs of habeas corpus on behalf of prisoners there to curb arbitrary exercises of power. (Disclosure: I represented a group of historians as amici curiae who argued these issues to the court). What this history shows is that there were no legal black-holes at common law, not that sovereignty was the touchstone, let alone the sine qua non, of habeas jurisdiction.

In fact, in no case before 1789 was the common law writ of habeas corpus held not to extend to territory under the crown’s exclusive control and jurisdiction. To the contrary, courts historically resolved any questions about the writ’s territorial reach in favor of its availability. The default rule in favor of habeas jurisdiction should apply with even greater force where the executive deliberately seeks to create a prison in a territory under its complete and permanent control to circumvent judicial review, as it has done at Guantanamo.
Judge Randolph also ignored the distinction between statutory and common law habeas. Judge Randolph pointed to Habeas Corpus Act of 1679, reasoning that the act’s time-limits for producing a prisoner showed that the writ would not run outside the sovereign territory of the crown. But this statute applied only to criminal cases and did not affect the common law writ which remained available in cases of executive and other non-criminal detention, including detention by the military. No territorial limits were placed on the common law writ’s reach, and it was this writ, not the 1679 act, that traveled to America and was operating in all thirteen colonies that rebelled in 1776. (Judge Randolph’s statement that there is no common law jurisdiction misses the point; as the Supreme Court explained in INS v. St. Cyr (533 U.S. 289 (2001)), the Suspension Clause guarantees statutory habeas jurisdiction at least in all cases where the writ would have been available at common law). In addition, it is ironic indeed to claim that the 1679 act – whose procedural reforms prompted William Blackstone to extol the statute as a “bulwark of individual liberty” – sanctions the creation of lawless enclaves in the twenty-first century. Merely because it might have been impractical to impose the 1679 act’s time-limits on habeas petitions filed by or on behalf of individuals held overseas four centuries ago does not support limiting constitutional habeas jurisdiction today to territory where the United States exercises sovereignty.

The court also mistakenly suggested that the Suspension Clause protects only the writ as it existed in 1789. As Judge Rogers notes, the court ignored the Supreme Court’s repeated statements that the Suspension Clause, at a minimum, protects the writ as it existed in 1789. (Marty Lederman also makes this point in his account of the decision). Judge Randolph thus neglected to consider whether the writ should extend to Guantanamo even if it would not have extended to such a territory in 1789. Assuming there were no common law case directly on point, the availability of habeas at Guantanamo is central to the writ’s core purpose as a safeguard of individual liberty. Legal challenges to executive detention at Guantanamo thus fall squarely within the heartland of habeas protected by the Suspension Clause, direct analogies from history aside.

Because the court found that the detainees had no constitutional right to habeas, it did not consider whether review by the D.C. Circuit of Combatant Status Review Tribunal (“CSRT”) decisions under the Detainee Treatment Act of 2005 could provide the adequate and effective substitute that the Suspension Clause requires. Judge Rogers, however, found this review scheme inadequate and ineffective, even though she rejected the claim that the detainees have rights under the Due Process Clause of the Fifth Amendment, as the district court had held in In re Guantanamo Detainee Cases (355 F. Supp. 2d 443 (D.D.C. 2005)). Judge Rogers thus recognized that Guantanamo detainees possess a core right against executive detention inherent in the common law writ of habeas corpus distinct from rights they may assert under the Fifth Amendment (rights the Supreme Court seemingly acknowledged in footnote 15 of Rasul). Judge Rogers concluded that the DTA’s narrow review of the flawed CSRT process, which lacks any meaningful factual inquiry, cannot provide adequate and effective substitute for common law habeas, a process codified in the habeas statute, 28 U.S.C. 2241 et seq. Indeed, Justice O’Connor described a similar habeas process, distinct from the Due Process Clause, in Hamdi v. Rumsfeld (542 U.S. 507 (2004)), as did Judge Michael Mukasey in Padilla ex rel. Newman v. Bush (233 F. Supp. 2d 564 (S.D.N.Y. 2002)). In short, at common law, prisoners routinely obtained a meaningful judicial inquiry into the factual as well as legal basis for their detention – precisely what the combined effect of DTA review of CSRT decisions precludes.

Ultimately, the most compelling historical argument against the MCA is that the concept of a law-free zone at Guantanamo contradicts the writ’s essence as a check against unlawful executive detention. The notion that the President can maintain Guantanamo as a prison beyond the law based on the legal fine print of sovereignty is antithetical to the basic principles habeas corpus and the Suspension Clause embody. It does not take a historian to recognize this much.


Comments:

Interesting post. Too bad you fail to provide anything to back up your assertions (beyond the one cite to Rasul on one specific point). The court in Boumediene says X and provides many reasons and citations for it. You say X isn't true but fail to provide almost anything other than your own assertions to the contrary. Color me unimpressed.

Repeat after me, "I will stpp confusing my own policy preferences with the positive law."
 

Not-so-Humble Law Student ignores Prof. Hafetz's discussion of writs issued in India, as well as his discussion of common-law habeas.

But it's not Hafetz's job to prove a negative -- it's the burden of the Administration to show why the writ should *not* run.

Who, exactly, is confusing his "policy preferences" with facts?
 

H.

Yes, discussion without citation. And for all I know, mere assertion. Otherwise, good contribution!
 

Too bad you fail to provide anything to back up your assertions (beyond the one cite to Rasul on one specific point). The court in Boumediene says X and provides many reasons and citations for it. You say X isn't true but fail to provide almost anything other than your own assertions to the contrary. Color me unimpressed.

I think this confuses a blog post with a law review article or even a judicial opinion.
 

Mark,

I understand your point. My issue with the post is that much of the author's argument is saying X posited by the court as a matter of law and history isn't correct. Okay, so where is your evidence. The author then basically just says, well it happened Y way. Okay, well, give me some evidence then. The court's opinion gave citation after citation. All I'm asking for is citations backup up his historical argument.

Basically, the author hasn't provided much evidence to show that the Court was wrong (on the whole).
 

My issue with the post is that much of the author's argument is saying X posited by the court as a matter of law and history isn't correct. Okay, so where is your evidence.

Fair enough. I assume much of the evidence probably appeared in the briefs. If so, a link would solve the problem.
 

HLS,
You may find the amicus brief referenced above--disclosure- near the end of the 4th paragraph-- helpful in fleshing out the argument with necessary citations. I believe the following to be that brief:

www.brennancenter.org/dynamic/
subpages/download_file_34645.pdf

From a cursory look through the brief, it appears that the post is a summary sans detailed citations of the brief. Hope it helps.
 

If not that one, this one seems to work.

-PMS
 

I just love this attitude of, "oh here's someone who's probably forgotten more habeas law than I've ever learned, but look! HIS BLOG POST DOESN'T INCLUDE CITATIONS! so I can ignore his summation of his research, rather than grapple with it on the merits."

Whatever that attitude is, it ain't "humble."
 

H.

Congrats on one of the most fallacious appeals to authority I have ever seen. You get a big smiley face sticker.

Everyone else,

Thanks for the links. I'll check them out.
 

Thanks btw to Steven F. & PMS for the links to the brief, which I am reading with great interest.
 

There is a difference between appeal to authority ...

... and contempt for authority.

The proper response to someone purporting, on a blog whose proprietor you respect, to be an expert on X, would be to ask for citations.

It would not be to make the smug comments of your last two sentences to your 1st comment, HLS. I hope you're covering up your embarrassment.
 

Okay, at risk of making this the H. Haller Echo Chamber, I do have a question about one citation.

At page 8 of the brief, it says that Federalist No. 83 refers to a "constitutional guarantee of habeas corpus meant to protect against arbitrary detention by the executive."

But looking at the text, the only reference I find to habeas is this:

Arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings. The trial by jury in criminal cases, aided by the habeas-corpus act, seems therefore to be alone concerned in the question. And both of these are provided for, in the most ample manner, in the plan of the convention.

How do Hamilton's remarks about "judicial despotism" go to the issue of "arbitrary detention by the executive"? Did I miss another reference in No. 83?
 

Professor Hafetz:

To begin with, the D.C. Circuit treated as an open question whether the writ would historically have extended to a territory like Guantanamo, where the United States exercises complete and exclusive jurisdiction and control, but not sovereignty. That question, however, was already answered by Rasul v. Bush (542 U.S. 466 (2004)).

Rasul should not control in any appeal from Boumediene v. Bush. The Rasul Court was interpreting the habeas statute, not the habeas common law as it existed when incorporated by implication by the Suppression Clause. Indeed, Rasul distinguished Eisentrager in part on the ground that Eisentrager was interpreting the constitutional habeas right and the Court in Rasul was not.

Contrary to the court’s conclusion, and as noted by the dissent, the common law writ was available in territory where the Crown exercised de facto but not de jury sovereignty. In India, English courts issued writs of habeas corpus to non-citizens unlawfully detained by crown officials. Moreover, in India Britain intentionally delayed the assertion of formal sovereignty over crown-controlled territories for decades after judges had begun issuing writs of habeas corpus on behalf of prisoners there to curb arbitrary exercises of power.

This is an interesting argument. Do you have links to either the case law or at least briefs by both sides addressing this case law?

In particular, I would be useful to know if these Courts normally had territorial jurisdiction over the English citizens or non-citizen subjects in India for habeas or other matters. If so, these cases are easily distinguished because no federal court normally has jurisdiction in Gitmo.

It would also be useful to know whether these courts discussed sovereignty in their decisions. While the Crown may have avoided exercising formal sovereignty over India for political reasons, the courts may have been exercising jurisdiction in India as if it were sovereign territory.

In fact, in no case before 1789 was the common law writ of habeas corpus held not to extend to territory under the crown’s exclusive control and jurisdiction.

This should not be relevant. At this time, habeas corpus was a right affirmatively created by the Courts. The scope of that right was thus limited to the common law rulings in existence at the time they were incorporated. The habeas right was not unlimited and did not require a court ruling to limit its scope as your argument implies.

The default rule in favor of habeas jurisdiction should apply with even greater force where the executive deliberately seeks to create a prison in a territory under its complete and permanent control to circumvent judicial review, as it has done at Guantanamo.

How do you arrive at this conclusion? The common law when the Constitution was ratified did not extend habeas corpus to prisoners of war. The King's Bench held twice in Three Spanish Sailors and Schiever that habeas review does not extend to prisoners of war challenging their detention for the duration of hostilities. That is precisely what the prisoners at Gitmo are doing.

The court also mistakenly suggested that the Suspension Clause protects only the writ as it existed in 1789. As Judge Rogers notes, the court ignored the Supreme Court’s repeated statements that the Suspension Clause, at a minimum, protects the writ as it existed in 1789. (Marty Lederman also makes this point in his account of the decision). Judge Randolph thus neglected to consider whether the writ should extend to Guantanamo even if it would not have extended to such a territory in 1789.

When a contract incorporates a law, it is generally assumed that agreement incorporates the law as it existed at the time the contract was perfected. This concept should also apply to the Constitution incorporating the habeas common law as it existed at the time.

If the implied constitutional habeas right changes over time, what would be the source of that change? As the D.C. Circuit observed, federal courts have no common law power to create habeas rights and are instead bound by statute. Thus, if you argue that the constitutional merely protects the right as it exists today, then the federal habeas statute as modified by the DTA and MCA sets the scope of the constitutional habeas right. However, allowing Congress the power to change the constitutional habeas right makes no sense since the Suppression Clause is meant to be a limit on Congress, not a blank check to modify the implied habeas right.

Ultimately, the most compelling historical argument against the MCA is that the concept of a law-free zone at Guantanamo contradicts the writ’s essence as a check against unlawful executive detention.

We agree for different reasons and with different outcomes.

I would argue that, until Rasul, habeas corpus had always been denied foreign enemy combatants being detained as prisoners of war by both the British and American militaries.

Rather than crawling into the briar patch of determining the geographical scope of federal court habeas review, the D.C. Circuit would have been better advised to cite to Three Spanish Sailors and Shriever and judicially recognized that the military had designated the Gitmo detainees as enemy combatants and dismissed their petitions seeking to challenge their detention of the duration of the war.
 

To follow up on H. Haller's suggestion, I *would* like to request citations for the availability of habeas corpus in India by the British, presumably prior to 1789.

Given the odd way that habeas corpus was and was not available in the American colonies, it would be interesting to look at cases or research set in India for comparison.
 

Steven F. said...

HLS, You may find the amicus brief referenced above--disclosure- near the end of the 4th paragraph-- helpful in fleshing out the argument with necessary citations. I believe the following to be that brief:

www.brennancenter.org/dynamic/
subpages/download_file_34645.pdf


I did a search for the term "India" in the pdf and nothing came up. I am swamped at work and do not have the time to read the brief now. Is there any mention of these alleged India habeas cases in that brief? If not, I wonder why not.
 

Mr. DePalma appears to overlook what the Rasul Court wrote:

Application of the habeas statute to persons detained at the base [i.e., Gitmo] is consistent with the historical reach of the writ of habeas corpus. At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm,11 as well as the claims of persons detained in the so-called "exempt jurisdictions," where ordinary writs did not run,12 and all other dominions under the sovereign's control.

IOW, the Writ runs under either the statute or the common law. I am open to entertaining opposite explanations of the above text (penult graf, sec. IV).

I also think that the notion that habeas was a right "affirmatively created by the Crown" would have come as a great surprise to Parliament.

As for the "POW" argument that Mr. DeP. wishes the D.C. court had made, perhaps they were not as impressed by it as he is.
 

Okay, I read the amicus brief that steven linked to. It is entirely unpersuasive. Here's why.

The brief never properly discusses the distinction of "who" is Constitutionally entitled to the Writ. It gives plenty of evidence that the Writ can only be suspended in the case of "rebellion or invasion" which is true so far as that goes. But it never discusses the important implication of to what territory the Writ extends -- which was one of the main issues in the case.

The brief implies that the Writ always applies (except for the two explicit conditions in the Constitution)-- but rather obviously it does not. For example, as a Constitutional matter, the Writ didn't cover Germans captured in France in WW2 and detained overseas.

So, self-evidently, the Writ is only applicable in certain situations (or rather there are certain situations in which the Writ isn't relevant). And only in those situations in which it is applicable, do we then look to see if it has been properly suspended.

The brief completely ignores this very important preliminary question (that must be answered for the brief to even be relevant).

Related issue: Now there may be a statute, that provides a statutory grant of Habeas beyond the minimum established by the Constitution. (For example, giving habeas protection to Germans in WW2). However, the grant is excess of the Constitutional minimum can just as easily be taken away by statute. That is the point in this case. Even if the Writ as a statutory matter covered Boumediene in the past, Congress revoked that grant, and the Constitutionally required minimum doesn't mandate extending Habeas protection to Boumediene.
 

To all,

The amicus brief provides little if any evidentiary/historical support to Mr. Hafetz's argument in this post. In my reading, I didn't notice any discussion of the India cases. (but I may have missed it)
 

Bart,

The Boumediene dissent cited a variety of Indian cases for the same proposition suggested here by Prof. Hafetz. The string cite provided in the dissent is:

See B.N. PANDEY, THE INTRODUCTION OF ENGLISH LAW INTO INDIA 112, 149, 151 (1967); see also Rex v. Mitter, Morton 210 (Sup. Ct., Calcutta 1781), reprinted in 1 THE INDIAN DECISIONS (OLD SERIES) 1008 (T.A. Venkasawmy Row ed., 1911); Rex v. Hastings, Morton 206, 208-09 (Sup. Ct., Calcutta 1775) (opinion of Chambers, J.), reprinted in 1 THE INDIAN DECISIONS, supra, at 1005, 1007; id. at 209 (opinion of Impey, C.J.); Kal Raustiala, The Geography of Justice, 73 FORDHAM L. REV. 2501, 2530 n.156 (2005).

Distinguishing Rasul's observation that application of the Great Writ to Gitmo detainees is "consistent with the historical reach of the writ of habeas corpus" on the grounds that it was interpreting only the statutory habeas right is absurd. I don't know how you can possibly read the Supreme Court to be referring to the historical reach of statutory habeas in the U.S. rather than to the historical reach of habeas generally. Moreover, the territorial reach of habeas under the Constitution logically would be at least as great as the reach of habeas under statutory law.

As for the POW issue, I believe Arne has repeatedly pointed out the very obvious flaws in this line of reasoning on your part, not the least of which is that the Gitmo detainees are not POWs and the administration has frequently been at pains to avoid categorizing them as such.
 

Dunno about Indian cases in the brief, but Google brings up this book review of Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (2003), which treats of the subject:

Chapters 3 and 4 play out this contrast between exception and normalcy by treating, in turn, the uses and suspension of habeas corpus in British India and the manner and purpose of invoking martial law in British colonies. 4
The idea of "a writ of liberty in a regime of conquest" was contradictory, Hussain points out (72). Rather than simply restricting the right of habeas corpus, the British extended it and then suspended it, in moves that changed the underlying definition of "rights" by making them inseparable from colonial institutional forms. Hussain goes on to trace the overlapping nature of the history of the writ and of jurisdictional tensions within colonialism, arguing that jurisdictional confusion acted to support a new interventionist role for the state. In tracing a little studied but clearly important aspect of colonial law, the chapter also provides historical background to current legal debates surrounding the U.S. Supreme Court's deliberations about the right to habeas corpus of the detainees at Guantánamo Bay.


The 1911 Britannica also recognizes the issuance of the writ in India, noting that it was issued against Warren Hastings in 1775. The article has some cites:

It has been used to test the question whether Roman Catholic religious orders could enter India, and in 1870 an attempt was made thereby to challenge the validity of a warrant in the nature of a lettre de cachet issued by the viceroy (Ind. L. Rep. 6 Bengal, 39 2, 45 6, 49 8), and it has also been applied to settle controversies between Hindus and missionaries as to the custody of a young convert (R. v. Vaughan, 1870, 5 Bengal, 418), and between a Mahommedan husband and his mother-in-law as to the custody of a girl-wife (Khatija Bibi, 1870, 5 Bengal, 557).

I second PMS in asking for specific cites to the cases Prof. Hafetz has in mind.
 

"humble"lawstudent,

Leave the amicus brief aside for a second. The question here is whether common law habeas rights in 1789 would have extended to the detainees at Gitmo (I will leave aside for the moment the question of whether the Suspension Clause protects more than that, as everyone agrees it protects at least that). The D.C. Circuit's argument, when one boils it down, is that 1789 habeas rights would not have extended to the detainees because sovereign control of the geographic area in which they are imprisoned is the sine qua non of habeas rights for non-citizens.

That assertion is demonstrably untrue. One of the key citations made by the panel majority(which you mentioned so adoringly upthread) is its very deliberate misquotation of Rex v. Cowle, a case that actually bolsters the detainees' argument, as pointed out by Prof. Hafetz. In case you missed it, Cowle held that the writ ran to all territories under the subjection of the Crown, and not merely to the Crown's sovereign holdings.

Furthermore, the D.C. Circuit (per its own precedent) ought to have been bound by the Supreme Court's "well considered dictum" in Rasul, which stated that application of habeas rights to the detainees in Gitmo was consistent with the historical reach of the writ.

The Boumediene panel majority can reach its outcome only by disregarding history and Supreme Court precedent.
 

In particular, I would be useful to know if these Courts normally had territorial jurisdiction over the English citizens or non-citizen subjects in India for habeas or other matters. If so, these cases are easily distinguished because no federal court normally has jurisdiction in Gitmo.

Except military courts and the US Court of Appeals for the Armed Forces, which cover anyone subject to the UCMJ, which as you know would also include prisoners of war or anyone in an "area leased by or otherwise reserved or acquired for use of the United States which is under the control of the Secretary" of Defense.
 

How do Hamilton's remarks about "judicial despotism" go to the issue of "arbitrary detention by the executive"? Did I miss another reference in No. 83?

In England in the 17C, the judiciary was under the control of the monarch. Judges didn't serve during good behavior, but at the sufferance of the King. The King used the judiciary to oppress people, famously in several instances leading up to the Habeas Act. I suspect that what Hamilton had in mind was what we today would call "executive", but which was then less distinct.
 

"If so, these cases are easily distinguished because no federal court normally has jurisdiction in Gitmo."

Really? Where do you suppose the assault and battery charge would be brought if two civilian contractors got into a fistfight on the Naval Air Station's grounds?

"When a contract incorporates a law, it is generally assumed that agreement incorporates the law as it existed at the time the contract was perfected. This concept should also apply to the Constitution incorporating the habeas common law as it existed at the time."

The Supreme Court already rejected that reasoning in St. Cyr, Bart. You may think this is correct, but if you have to overturn Supreme Court decisions to get to your desired results, you can't pretend (as you do) that it is an open-and-shut case.

"If the implied constitutional habeas right changes over time, what would be the source of that change?"

The same source of all changes in constitutional doctrine. One doesn't have to be the biggest proponent of a "living constitution" to know that all sorts of constitutional rights are properly found long after the document was written. Examples that almost everyone seems to agree include protections against unreasonable thermal imaging and wiretapping, and evolving standards of decency with respect to the cruel and unusual punishment clause.

"Rather than crawling into the briar patch of determining the geographical scope of federal court habeas review, the D.C. Circuit would have been better advised to cite to Three Spanish Sailors and Shriever and judicially recognized that the military had designated the Gitmo detainees as enemy combatants and dismissed their petitions seeking to challenge their detention of the duration of the war."

Well, unlike you, the DC Circuit has to at least pretend it is obeying controlling Supreme Court authority, even if it likes nonbinding 200 year old cases better.
 

pete,

I'm going back and forth between the court's characterization of Rex v. Cowle and others'. Can anyone find the text of the opinion?
 

Can anyone find the text of the opinion?

I found a good discussion of it (and other issues) here.
Another discussion appears here at pp. 512-13. Couldn't find the actual text, though.
 

H. Haller said...

At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm,11

The only pertinent case from Footnote 11 was King v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759), where the King's Bench judicially recognized the Crown's designation of the petitioner as a POW and dismissed the petition.

...as well as the claims of persons detained in the so-called "exempt jurisdictions," where ordinary writs did not run,12

All of the cases in Footnote 12 were located within England.

I also think that the notion that habeas was a right "affirmatively created by the Crown" would have come as a great surprise to Parliament.

It would come as a great surprise to me as well. Which part of my post - " At this time, habeas corpus was a right affirmatively created by the Courts" - did you not understand?
 

Pete said...

Bart, The Boumediene dissent cited a variety of Indian cases for the same proposition suggested here by Prof. Hafetz. The string cite provided in the dissent is:

See B.N. PANDEY, THE INTRODUCTION OF ENGLISH LAW INTO INDIA 112, 149, 151 (1967); see also Rex v. Mitter, Morton 210 (Sup. Ct., Calcutta 1781), reprinted in 1 THE INDIAN DECISIONS (OLD SERIES) 1008 (T.A. Venkasawmy Row ed., 1911); Rex v. Hastings, Morton 206, 208-09 (Sup. Ct., Calcutta 1775) (opinion of Chambers, J.), reprinted in 1 THE INDIAN DECISIONS, supra, at 1005, 1007; id. at 209 (opinion of Impey, C.J.); Kal Raustiala, The Geography of Justice, 73 FORDHAM L. REV. 2501, 2530 n.156 (2005).


As I suspected, the fact that there are entire reporters on English court decisions in India indicates that English Courts had normal jurisdiction in India, unlike the US federal courts who have no jurisdiction in Gitmo. If the English courts had normal jurisdiction in India then the writ would naturally follow.
 

PMS_Chicago said...

In particular, I would be useful to know if these Courts normally had territorial jurisdiction over the English citizens or non-citizen subjects in India for habeas or other matters. If so, these cases are easily distinguished because no federal court normally has jurisdiction in Gitmo.

Except military courts and the US Court of Appeals for the Armed Forces, which cover anyone subject to the UCMJ, which as you know would also include prisoners of war or anyone in an "area leased by or otherwise reserved or acquired for use of the United States which is under the control of the Secretary" of Defense.


Under the MCA, UCMJ only applies to legal combatants being tried for war crimes, not to challenge their wartime detention.
 

Dilan said...

BD: "If so, these cases are easily distinguished because no federal court normally has jurisdiction in Gitmo."

Really? Where do you suppose the assault and battery charge would be brought if two civilian contractors got into a fistfight on the Naval Air Station's grounds?


Most likely, no such charges could be brought. UCMJ does not apply to civilians and federal criminal law generally does not extend outside of our borders. The military would probably temporarily detain and then send the contractor home.

BD: "When a contract incorporates a law, it is generally assumed that agreement incorporates the law as it existed at the time the contract was perfected. This concept should also apply to the Constitution incorporating the habeas common law as it existed at the time."

The Supreme Court already rejected that reasoning in St. Cyr, Bart. You may think this is correct, but if you have to overturn Supreme Court decisions to get to your desired results, you can't pretend (as you do) that it is an open-and-shut case.


Feel free to quote the passage from St Cyr which "rejected that reasoning."

BD: "If the implied constitutional habeas right changes over time, what would be the source of that change?"

The same source of all changes in constitutional doctrine. One doesn't have to be the biggest proponent of a "living constitution" to know that all sorts of constitutional rights are properly found long after the document was written.


As the D.C. Circuit discusses in Footnote 5, the Supreme Court early on held that the Courts had no common law power to create habeas jurisdiction. What you are calling for (as are the Gitmo detainee attorneys) is an outlaw court to rewrite the Constitution.
 

Bart DePalma said...

As I suspected, the fact that there are entire reporters on English court decisions in India indicates that English Courts had normal jurisdiction in India, unlike the US federal courts who have no jurisdiction in Gitmo.

I think the citations I quoted actually argue for the opposite result. You'll notice that the official reporter referenced was published in 1911, while the actual cases took place in 1781 and 1775, respectively. It would appear to me, at least based on this scant piece of evidence, that when the cases actually occurred, English courts did not have "normal jurisdiction" in India. Later, when such "normal jurisdiction" came to exist, previous Indian cases were reprinted in an official English reporter.
 

Under the MCA, UCMJ only applies to legal combatants being tried for war crimes, not to challenge their wartime detention.

So, the tradition dates all the way back to 2006, then. ;)
 

Bart makes an interesting point I think about the Indian cases.

Pete, the cases were reprinted in later reporters. But notice, the "Sup. Ct., Calcutta" portion listed twice. It seems that they had established courts in India. Maybe its nothing, or maybe I'm reading it wrong, but there seems to be something to Bart's point.
 

"Bart" DePalma once again doesn't listen to what anyone else is saying (including the U.S. Supreme Court):

[Professor Hafetz]: To begin with, the D.C. Circuit treated as an open question whether the writ would historically have extended to a territory like Guantanamo, where the United States exercises complete and exclusive jurisdiction and control, but not sovereignty. That question, however, was already answered by Rasul v. Bush (542 U.S. 466 (2004)).

["Bart"]: Rasul should not control in any appeal from Boumediene v. Bush. The Rasul Court was interpreting the habeas statute, not the habeas common law as it existed when incorporated by implication by the Suppression Clause. Indeed, Rasul distinguished Eisentrager in part on the ground that Eisentrager was interpreting the constitutional habeas right and the Court in Rasul was not.


No. As has been pointed out before, and which "Bart" just simply ignored when brought up in objection to the way that "Bart" 'sees' Rasul, the court in Rasul was quite specific on how the Eisentrager Decision was being distinguished. "Bart" is just completely mistaken when he thinks they did so on the basis of "constitutional" versus "statutory" habeas:

Respondents' primary submission is that the answer to the jurisdictional question is controlled by our decision in Eisentrager. In that case, we held that a Federal District Court lacked authority to issue a writ of habeas corpus to 21 German citizens who had been captured by U. S. forces in China, tried and convicted of war crimes by an American military commission headquartered in Nanking, and incarcerated in the Landsberg Prison in occupied Germany. The Court of Appeals in Eisentrager had found jurisdiction, reasoning that "any person who is deprived of his liberty by officials of the United States, acting under purported authority of that Government, and who can show that his confinement is in violation of a prohibition of the Constitution, has a right to the writ." Eisentrager v. Forrestal, 174 F. 2d 961, 963 (CADC 1949). In reversing that determination, this Court summarized the six critical facts in the case:

"We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States." 339 U. S., at 777.

On this set of facts, the Court concluded, "no right to the writ of habeas corpus appears." Id., at 781.

Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

Not only are petitioners differently situated from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners' constitutional entitlement to habeas corpus. Id., at 777. The Court had far less to say on the question of the petitioners' statutory entitlement to habeas review. Its only statement on the subject was a passing reference to the absence of statutory authorization: "Nothing in the text of the Constitution extends such a right, nor does anything in our statutes." Id., at 768.

Rasul v. Dubya, 542 U.S. 466 (2004).

The court doesn't say, much less hold, the the sole relevant distinction in Eisentrager was the form of habeas.

Rather, it points out that the petitioners were not similarly situated, and then adds in an "... and also, Eisentrager involved 'constitutional' habeas".

As has been also pointed out to "Bart", the Rasul court went on to explain the history of the Eisentrager decision and why the court didn't address statutory habeas there. But as the Braden (cited by Rasul) court noted, the predicate case, Ahrens, has since been at the very least undermined, and they sent a fairly strong signal that Eisentrager may well be dead law.

More objections to this nonsense from "Bart" rebutted here.

[Prof. Hafetz]: Contrary to the court’s conclusion, and as noted by the dissent, the common law writ was available in territory where the Crown exercised de facto but not de jury sovereignty. In India, English courts issued writs of habeas corpus to non-citizens unlawfully detained by crown officials. Moreover, in India Britain intentionally delayed the assertion of formal sovereignty over crown-controlled territories for decades after judges had begun issuing writs of habeas corpus on behalf of prisoners there to curb arbitrary exercises of power.

["Bart"]" This is an interesting argument. Do you have links to either the case law or at least briefs by both sides addressing this case law?

In particular, I would be useful to know if these Courts normally had territorial jurisdiction over the English citizens or non-citizen subjects in India for habeas or other matters. If so, these cases are easily distinguished because no federal court normally has jurisdiction in Gitmo.


Oh, nonsense. There's civil court cases from Gitmo, IIRC. Not to mention Braden shoots this argument to pieces. See my links above.

["Bart"]: It would also be useful to know whether these courts discussed sovereignty in their decisions. While the Crown may have avoided exercising formal sovereignty over India for political reasons, the courts may have been exercising jurisdiction in India as if it were sovereign territory.

Why dontcha look it up if you think there's some "theory" that supports your gibberish, "Bart"....

[Prof. Hafetz]: In fact, in no case before 1789 was the common law writ of habeas corpus held not to extend to territory under the crown’s exclusive control and jurisdiction.

["Bart"]" This should not be relevant. At this time, habeas corpus was a right affirmatively created by the Courts....


That's a -- ummm, "novel" -- perspective on history. Those damn courts meddling again and interfering with good ol' "law'n'order" way, way back to Runnymede or so.... Except my mind fails me; I thought it was someone else than wigged judges that was on the field that day....

... The scope of that right was thus limited to the common law rulings in existence at the time they were incorporated. The habeas right was not unlimited and did not require a court ruling to limit its scope as your argument implies.

Says the guy -- without cites -- that refuses to read the scholarly stuff that others have written (if it doesn't agree with his preconceived notions).

[Prof. Hafetz]: The default rule in favor of habeas jurisdiction should apply with even greater force where the executive deliberately seeks to create a prison in a territory under its complete and permanent control to circumvent judicial review, as it has done at Guantanamo.

["Bart"]: How do you arrive at this conclusion? ...


In part because several cases have pointed out that trying to "defeat" habeas by "hiding" )or moving) the prisoner is a ruse that so obviously goes counter to the entire thrust and purpose of habeas as to make any loophole allowing such an absurdity. Plain enough?

... The common law when the Constitution was ratified did not extend habeas corpus to prisoners of war. The King's Bench held twice in Three Spanish Sailors and Schiever that habeas review does not extend to prisoners of war challenging their detention for the duration of hostilities....

Nonsense. The court heard Schiever, looked at the facts, and denied Schiever the relief he sought on the merits.

... That is precisely what the prisoners at Gitmo are doing.

They're claiming they are not "enemy combatants". Don't they deserve to have an independent body look at the facts?

[Prof. Hafetz]: The court also mistakenly suggested that the Suspension Clause protects only the writ as it existed in 1789. As Judge Rogers notes, the court ignored the Supreme Court’s repeated statements that the Suspension Clause, at a minimum, protects the writ as it existed in 1789. (Marty Lederman also makes this point in his account of the decision). Judge Randolph thus neglected to consider whether the writ should extend to Guantanamo even if it would not have extended to such a territory in 1789.

["Bart"]: When a contract incorporates a law, it is generally assumed that agreement incorporates the law as it existed at the time the contract was perfected. This concept should also apply to the Constitution incorporating the habeas common law as it existed at the time.


Except the Constitution didn't "incorporat[e] habeas common law as it existed" but rather assumed that the Great Writ was and should be in existence as it had been for centuries when specifying that only under extreme circumstances should this greatest guarantor of freedom be curtailed.

... If the implied constitutional habeas right changes over time, what would be the source of that change? As the D.C. Circuit observed, federal courts have no common law power to create habeas rights and are instead bound by statute. Thus, if you argue that the constitutional merely protects the right as it exists today, then the federal habeas statute as modified by the DTA and MCA sets the scope of the constitutional habeas right. However, allowing Congress the power to change the constitutional habeas right makes no sense since the Suppression Clause is meant to be a limit on Congress, not a blank check to modify the implied habeas right.

"Bart" here is under the impression that absent a ruling that establishes a common law right, no such common law right could exist (or have existed at some particular time). This is a truly silly argument, because then all common law is flawed in "creating" law that didn't exist at common law before.

[Prof. Hafetz]: Ultimately, the most compelling historical argument against the MCA is that the concept of a law-free zone at Guantanamo contradicts the writ’s essence as a check against unlawful executive detention.

We agree for different reasons and with different outcomes.

["Bart"]: I would argue that, until Rasul, habeas corpus had always been denied foreign enemy combatants being detained as prisoners of war by both the British and American militaries.


And you'd be wrong, "Bart". Wrong on the facts. This has been pointed out repeatedly.

["Bart"]: Rather than crawling into the briar patch of determining the geographical scope of federal court habeas review, the D.C. Circuit would have been better advised to cite to Three Spanish Sailors and Shriever and judicially recognized that the military had designated the Gitmo detainees as enemy combatants and dismissed their petitions seeking to challenge their detention of the duration of the war.

Or doing what Rasul did and saying that playig games with territorial jurisdiction is a non-sytarter after Braden and that peiople have a right to be heard if they claim they're wrongly imprisoned by the gummint.

"Bart" relies in the good sense and discernment of the Cheney maladministration.

Cheers,
 

Really? Where do you suppose the assault and battery charge would be brought if two civilian contractors got into a fistfight on the Naval Air Station's grounds?

Most likely, no such charges could be brought. UCMJ does not apply to civilians and federal criminal law generally does not extend outside of our borders. The military would probably temporarily detain and then send the contractor home.

That's just silly. Of course if a serious crime occurred on the base, the federal courts would assert jurisdiction. This would be 9-0 if it went to the Supreme Court.

"Feel free to quote the passage from St Cyr which 'rejected that reasoning.'"

It's cited in the original post. St. Cyr indicated that the MINIMUM that the Suspension Clause covers is the historical writ. You seem to think that it is the MAXIMUM; that position was rejected squarely in St. Cyr.
 

"As the D.C. Circuit discusses in Footnote 5, the Supreme Court early on held that the Courts had no common law power to create habeas jurisdiction. What you are calling for (as are the Gitmo detainee attorneys) is an outlaw court to rewrite the Constitution."

Well, a common law power to create habeas jurisdiction (i.e., beyond the minimum required by the Constitution) is quite different from the minimum standard for constitutional habeas changing over time.

In any event, what you run into is St. Cyr, which says that the suspension clause protects at least as much habeas as was protected at the time the Constitution was adopted. In other words, you have a 200 year old case that doesn't really say what you claim it does. I have a very recent case where the Court rejected your theory of jurisprudence.

You can say what you think the law should be, based on ancient cases, all you want, but it's the province of the current Supreme Court to say what it IS.
 

PMS_Chicago said...

Under the MCA, UCMJ only applies to legal combatants being tried for war crimes, not to challenge their wartime detention.

So, the tradition dates all the way back to 2006, then. ;)


Actually, the MCA largely returns us to the status quo ante Hamdan. So yes, you could call this the traditional position.
 

Dilan said...

Really? Where do you suppose the assault and battery charge would be brought if two civilian contractors got into a fistfight on the Naval Air Station's grounds?

BD: Most likely, no such charges could be brought. UCMJ does not apply to civilians and federal criminal law generally does not extend outside of our borders. The military would probably temporarily detain and then send the contractor home.

That's just silly. Of course if a serious crime occurred on the base, the federal courts would assert jurisdiction. This would be 9-0 if it went to the Supreme Court.


Then, of course, you can tell us all which federal district courts has criminal jurisdiction over Gitmo. I believe if you do a little research, you will find a number of articles complaining that no laws applied to contractors in Iraq when they got into trouble.

"Feel free to quote the passage from St Cyr which 'rejected that reasoning.'"

It's cited in the original post. St. Cyr indicated that the MINIMUM that the Suspension Clause covers is the historical writ.


The "absolute minimum" comment was unexplained in the opinion and most likely refers to the fact that Congress can expand the scope of habeas corpus beyond the constitutional base. More importantly, this blurb does not address my argument at all, much less address it.

BD: "As the D.C. Circuit discusses in Footnote 5, the Supreme Court early on held that the Courts had no common law power to create habeas jurisdiction. What you are calling for (as are the Gitmo detainee attorneys) is an outlaw court to rewrite the Constitution."

Well, a common law power to create habeas jurisdiction (i.e., beyond the minimum required by the Constitution) is quite different from the minimum standard for constitutional habeas changing over time.


No it is not.

The constitution does not define the scope of the guarantees habeas corpus right. We assume that the Suspension Claus incorporates it by implication. This begs the question of from where the right would be incorporated. The most logical place would be the common law right as it existed at the time. If you claim that the Suspension Clause incorporates a later right, then you have to identify the source of that right.

As I pointed out, the federal Courts have never been permitted to expand habeas jurisdiction pursuant to a common law theory. Thus, the courts cannot be the source unless they are rewriting the Constitution. The Congress could be the only source and that makes no sense for the reasons I pointed out above.
 

Field: In England in the 17C, the judiciary was under the control of the monarch. Judges didn't serve during good behavior, but at the sufferance of the King.

Doh. "Judicial despotism" where judges are the *means*, not the perpetrators. Thanks!

DePalma: At this time, habeas corpus was a right affirmatively created by the Courts" - did you not understand?

Evidently not -- oops!
 

This comment has been removed by the author.
 

Bart: The "absolute minimum" comment was unexplained in the [St. Cyr] opinion and most likely refers to the fact that Congress can expand the scope of habeas corpus beyond the constitutional base.

It is correct to not that this was undefined in the opinion. But whatever it meant, it definitely referred to what the Suspension Clause protects.

If your surmise above is correct, then you are actually in agreement with Judge Rogers' dissent in Boumediene, which asserts that because Congress extended habeas jurisdiction to cover the Guantanamo situation (as Rasul v Bush held the statute meant), retracting that jurisdiction was an unconsititutional suspension. So you might want to rethink that.

If the Supreme Court holds that the 1789 historical writ did not encompass such a situtation, the court then will be faced with defining what it meant by "absolute minimum."
 

h. haller:

The entire purpose of habeas corpus is to give the courts the jurisdiction to compel the executive to release an illegally held prisoner.

The British courts created the common law on habeas corpus, not the King.

If you are arguing that British common law should not be used as the source for our constitutional right because the King had too much influence over the British courts, I am perfectly content to rely on US common law alone. Until Rasul, courts in the Colonies or the United States never extended habeas corpus to POWs to challenged their detention for the duration of a war.
 

Jao,

Your analysis is wrong., but I'm glad you raised it because I suspect others might be confused as well.

There is an important difference between suspending Habeas as provided for by the Constitution and revoking some statutory grant given beyond the Constitutional minimum.

The Suspension clause only applies to when Habeas is suspended for someone to whom the Constitutional minimum applies. If Congress, statutorily, grants "additional" Habeas protection that can just as easily be revoked by statute. It does not implicate the suspension clause unless it acts to violate the Constitutional minimums. In other words, statutory enhancments are not somehow made into Constitutional mandates. To oversimplify, What Congress giveth, Congress can take away
 

Humble Law Student: Your analysis is wrong ...

It is not my analysis, but that of the court in INS v St Cyr: "... at the absolute minimum, the Suspension Clause protects the writ 'as it existed in 1789.' Felker, 518 U.S., at 663—664." (My empahsis)

Now, I don't know for sure what the court meant by "at the absolute minimum," but I don't assume that it meant "at the absolute maximum" (which is theoretically possible). Nor do I understand what specific theory would encompass Guantanamo (or anything else) beyond the situation "as it existed in 1789," although I agree that someone needs to articulate it.

Although I am sympathetic to your argument that "what Congress giveth, Congress can take away," I am not prepared to assume away the St. Cyr dicta as surplusage. I am actually agnostic (and curious) about this question. The court may reach it in this case, but only if it finds that Guantanamo was not covered by the 1789 historical snapshot of common law.
 

Jao,

My apologies, I should have been more specific.

My dispute is with this statement, "If your [referring to Bart] surmise above is correct, then you are actually in agreement with Judge Rogers' dissent in Boumediene, which asserts that because Congress extended habeas jurisdiction to cover the Guantanamo situation (as Rasul v Bush held the statute meant), retracting that jurisdiction was an unconsititutional suspension. So you might want to rethink that."

Now, I'm not sure if you are just saying that the dissenter thinks this and you may or may not. But, my point is that this argument is fundamentally flawed as explained in my previous post.
 

The Suspension clause only applies to when Habeas is suspended for someone to whom the Constitutional minimum applies.

Remind us of your authority for this interpretation, please?
 

humblelawstudent,

My point, in the particular comment you quoted, was just to help Bart remove his foot from his mouth. His surmise -- "The 'absolute minimum' comment was unexplained in the opinion and most likely refers to the fact that Congress can expand the scope of habeas corpus beyond the constitutional base" -- actually was agreeing with an argument from Judge Rogers' dissent. Part of her reasoning was that, however habeas was expanded to include Guantanamo, it was covered by the Suspension Clause. I gather that Bart, like you, really means to disagree with that.

As for myself, I remain undecided. Although I, too, have questioned the theory of how habeas could be expanded beyond the "absolute minimum" of 1789 common law, I recognize that a majority of the Supreme Court recognized that it might be if the court ever decides this issue, which it expressly has not.

The nuance between my position and yours, I think, is that despite your professed humility, you seem absolutely certain of your absolute position on the question, no matter what the court might decide.
 

JaO said...

Bart: The "absolute minimum" comment was unexplained in the [St. Cyr] opinion and most likely refers to the fact that Congress can expand the scope of habeas corpus beyond the constitutional base.

If your surmise above is correct, then you are actually in agreement with Judge Rogers' dissent in Boumediene, which asserts that because Congress extended habeas jurisdiction to cover the Guantanamo situation (as Rasul v Bush held the statute meant), retracting that jurisdiction was an unconsititutional suspension. So you might want to rethink that.


The dissent's argument fails on two counts.

First, Congress never enacted a statute which stated that habeas jurisdiction extended overseas to foreign enemy combatants to challenge their wartime detentions. The Court "interpreted" this into the general habeas statute. In fact, Congress corrected the Court's revision of the habeas statute twice in the DTA and MCA

Next, if you are going to argue (which I do not) that the Congress has the power to expand a constitutional right merely by passing a statute, exactly what is the reasoning to claim that Congress cannot likewise shrink a constitutional rights by enacting another statute?

The Suspension Clause is a negative provision which limits Congressional power to pass legislation suspending habeas corpus. It is not an affirmative grant of power to Congress to determine the reach of the implied base constitutional right to habeas corpus.

merely a restriction on the Congress' power to suspend habeas corpus by statute.
 

H.

Its implicit throughout Rasul. The district court opinion by Judge Robertson lays it out as well. Plus, there specifically is no SCOTUS opinion that mandates statutory grants of habeas are somehow incorporated into the Constitutionally mandated minimums. It just doesn't make much sense. Plus, the language of Suspension in the Constitution vs. the nature of legislation and how extra (beyond the Constitutional minimums) rights can be revoked after granted by Congress should lead you in the right direction.
 

Barts last paragraphs explain it well.
 

Bart: First, Congress never enacted a statute which stated that habeas jurisdiction extended overseas to foreign enemy combatants to challenge their wartime detentions. The Court "interpreted" this into the general habeas statute. In fact, Congress corrected the Court's revision of the habeas statute twice in the DTA and MCA

Both Rasul v Bush and Hamdan v Rumsfeld were essentially statutory decisions. And the Supreme Court -- not Congress, the President or even Bart DePalma -- has the unreviewable authority to interpet and apply the statutes.

In Rasul, the Supreme Court of the United States held that then-existing statutes provided habeas jurisdiction over Guantanamo. Period.

A faction in Congress, led by Sen. Graham, then attempted to amend the statute via the Detainee Treatment Act to remove the statutory jurisdiction, but failed to negotiate language that did so unambiguously. The Supreme Court said so in Hamdan. Then, in the Military Commissions Act, Congress adopted language with unambiguous intent to excise this jurisdiction from the statute, which even the dissent in the Boumediene case recognized.

Bart: Next, if you are going to argue (which I do not) that the Congress has the power to expand a constitutional right merely by passing a statute, exactly what is the reasoning to claim that Congress cannot likewise shrink a constitutional rights by enacting another statute?

You seem to be mistaking me for Mr. Boumediene's attorney. I am making no such argument. In fact, I have raised the same questions you do. But those questions have not been decided. They may be if the Supreme Court reaches them in this case. (They probably will not be if the court holds that historical precedent circa 1789 actually covers Guantanamo.) I do agree that if the court gets so far as to reach the meaning of the "absolute minimum" dicta from St. Cyr and apply it here, someone needs to articulate a theory of how habeas corpus, as protected by the Suspension Clause, has been expanded to cover this situation.
 

JaO said...

Bart: First, Congress never enacted a statute which stated that habeas jurisdiction extended overseas to foreign enemy combatants to challenge their wartime detentions. The Court "interpreted" this into the general habeas statute. In fact, Congress corrected the Court's revision of the habeas statute twice in the DTA and MCA

Both Rasul v Bush and Hamdan v Rumsfeld were essentially statutory decisions. And the Supreme Court -- not Congress, the President or even Bart DePalma -- has the unreviewable authority to interpet and apply the statutes.


The Court is not rewriting the Constitution to find the habeas corpus statute to be unconstitutional. Rather, the Court in Rasul and Hamdan is abusing its power to interpret what Congress meant to accomplish in the habeas corpus statutes.

Such an abuse need not stand. Congress has plenary power to reverse Rasul and Hamdan by amending the statute so the Court can no longer read its own policy preferences into broad provisions of the statute. If the Court ignores Congress again, it will create a constitutional crisis.
 

Bart,

Take a deep breath.

The Supreme Court interpreted a statute, which is its job. The Congress amended the statute, which is its job.

Just because you disagree with one or more court decisions does not create a constitutional crisis.
 

"Bart" DePalma makes up not only new facvts, but new geography:

Then, of course, you can tell us all which federal district courts has criminal jurisdiction over Gitmo. I believe if you do a little research, you will find a number of articles complaining that no laws applied to contractors in Iraq when they got into trouble.

Wow. When did they move Gitmo to the Middle East? Must 'a been napping. I'll try to pay more attention in the future.

Cheers,
 

humblelawstudent,

This brief should put the argument you and Bart find so appealing to rest. It appears that England did not assert formal sovereignty in India until 1813. Specifically, it was the Charter Act of 1813 (53 Geo. III c. 155) that first asserted the sovereignty of the Crown over the territories held by the British East India Company.

While it is true that the Regulating Act of 1773 made British law generally operational in the East India Company's territories (including the establishment of the Calcutta Supreme Court, which you noted), it was not until 1813 that the Crown's formal sovereignty was asserted.
 

I do agree that if the court gets so far as to reach the meaning of the "absolute minimum" dicta from St. Cyr and apply it here, someone needs to articulate a theory of how habeas corpus, as protected by the Suspension Clause, has been expanded to cover this situation.

Allow me. I don't see any reason to freeze the development of habeas jurisdiction in the year 1789.

Let's take an example from Article I to see why such a freeze makes little sense. Under Art. I, Sec. 2, cl. 1, "the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature." As we all know, the states at that time imposed, by statute or in their constitutions, various qualifications on voters, mostly requirements that they own a specified amount of property. Does anyone believe that those of us voting today have to meet the property qualifications of 1789 because those requirements were frozen as of 1789?

Of course not. Now, let's carry this a step further. Most of those property requirements were eliminated by statute. Will anyone argue that today the states could, by statute, disenfranchise voters who lacked sufficient property? Sometimes the statutory ratchet does work just one way.

Even without this argument, the expansion of habeas rights can occur by the usual common law-style decision-making of the Supremes just as easily as it can by statute. The Court would, of course, need to articulate a basis for that.

In addition, one might well interpret the statutes as reflecting Congressional interpretation of the Constitutional right. So interpreted, the long term, settled expansion of the jurisdictional scope would and should help fix the meaning of the clause just as it did in the case of the Bank.
 

Pete,

First off, the link doesn't work. Second, I don't see how it necessarily puts the argument to rest.
 

humblelawstudent,

Here's another try at the link . Perhaps I was missing something, but you and Bart appearted to argue that the establishment of courts in India was an indication that the British Crown exercised sovereignty there, making any analogies to GTMO inapposite. The brief and the references therein provided demonstrate that sovereignty was not asserted formally until 1813, which is FORTY YEARS after writs of habeas corpus were first issued in India.

In short, formal sovereignty was irrelevant to the assertion of British habeas jurisdiction in India.
 

I see my link yet again doesn't work. Here it is without my crappy html skills interfering:

http://www.ccr-ny.org/v2/legal/september_11th/docs/RasulLegalHistoriansSCAmicus.pdf
 

JaO said...

Bart, The Supreme Court interpreted a statute, which is its job. The Congress amended the statute, which is its job.

I might give the Court the benefit of the doubt in Rasul because that case was based on an earlier case extending the jurisdiction of courts under the habeas statute beyond the normal venue of a federal district court which Congress had not acted to correct.

However, Congress made its intent very clear with the passage of the DTA with the express purpose of reversing Rasul. Instead of listening to Congress, the Hamdan Court distinguished the DTA and continued to insert its own policy preferences.

After Hamdan, Congress slapped down the Court with the very express and absolute wording in the MCA. Indeed, the D.C. Circuit couldn't resist analogizing the enactment of the MCA to Congress "slamming their fists on the table shouting “When we say ‘all,’ we mean all – without exception!” Boumediene at 10-11. (Emphasis included in the opinion).

If the Court ignores the express absolute language of the MCA a it did the DTA, I do not think that calling such a blatant outlaw act a "constitutional crisis" is overstating the matter. This would be the equivalent of the President ignoring legislation defunding the Iraq war and spending money allocated to Social Security to pay for the war.
 

Pete said...

This brief should put the argument you and Bart find so appealing to rest. It appears that England did not assert formal sovereignty in India until 1813...While it is true that the Regulating Act of 1773 made British law generally operational in the East India Company's territories (including the establishment of the Calcutta Supreme Court, which you noted), it was not until 1813 that the Crown's formal sovereignty was asserted.

Actually, you are doing my argument a great service with your research. Thank you.

The brief is making a distinction without a difference. While the Crown may not have extended political sovereignty over India, they imposed legal sovereignty over India by imposing their law (presumably including habeas corpus) and establishing courts in India to enforce that law.

If, as I suspect, British courts with jurisdiction in India wrote the habeas opinions applying to India which are being cited in this thread, then these opinions hardly stand for the proposition that habeas corpus extends beyond the normal territorial jurisdiction of the court nevertheless beyond the sovereign territory where British law held sway.
 

"Bart" DePalma, the 'broken record':

In fact, Congress corrected the Court's revision of the habeas statute twice in the DTA and MCA.

Stop it, "Bart". They did no such thing. They amended the law. They changed it. Should they unamend it and bring the law back to the state pre-Rasul, the same outcome should apply on the same facts as in Rasul.

It can't avail you to claim that they were just correcting an interpretation of the law they had passed, as 28 USC § 2241 has been around for a lot longer than many of the folks in Congress.

That's the problem with writing law: you can write it, but ever since Marbury the courts get to say what it means under sepcific sets of facts. If you don't want to be "misinterpreted" (and it's not at all obvious that the writers of the original § 2241 would have even had that objection), your job is to write your "interpretation" into the law.

Cheers,
 

Bart,

Yes, Judge Randolph obviously feels strongly about this, as evidenced by his use of boldface emphasis. As I read it, his frustration is directed at the Boumediene appellants. The fact that Randolph was reversed by the Big Court on the Hill in both Rasul and Hamdan might have something to do with his state of mind. (Perhaps he is now headed for 0 for 3, given his pointed failure to address the Supreme Court's dicta, both in Rasul and St. Cyr.)

In any event, there does not seem to be any serious controversy in the Boumediene case about congressional intent in the MCA. Even the dissent in the D.C. Circuit agrees that Congress intended to exclude Guantanamo in this statute. The questions that arise for Supreme Court review are no longer statutory, but constitutional.
 

Pete:

Here is the link to Legal Historians Amicus in Rasul you were trying to post.
 

"Bart" DePalma uses the "head I win, tails you lose" tactic:

The brief is making a distinction without a difference. While the Crown may not have extended political sovereignty over India, they imposed legal sovereignty over India by imposing their law (presumably including habeas corpus) and establishing courts in India to enforce that law.

So they can impose "'legal' sovereignty ... including habeas corpus" without actual sovereignty. IC. They can just say "you're under our laws and our courts ... and BTW, here's your habeas..." If so, then how is the issue of "sovereignty" any impediment to habeas? Oh, yeah, it's not:

The question now before us is whether the habeas statute confers a right to judicial review of the legality of Executive detention of aliens in a territory over which the United States exercises plenary and exclusive jurisdiction, but not "ultimate sovereignty."6

III

Respondents' primary submission is that the answer to the jurisdictional question is controlled by our decision in Eisentrager. In that case, we held that a Federal District Court lacked authority to issue a writ of habeas corpus to 21 German citizens who had been captured by U. S. forces in China, tried and convicted of war crimes by an American military commission headquartered in Nanking, and incarcerated in the Landsberg Prison in occupied Germany. The Court of Appeals in Eisentrager had found jurisdiction, reasoning that "any person who is deprived of his liberty by officials of the United States, acting under purported authority of that Government, and who can show that his confinement is in violation of a prohibition of the Constitution, has a right to the writ." Eisentrager v. Forrestal, 174 F. 2d 961, 963 (CADC 1949). In reversing that determination, this Court summarized the six critical facts in the case:

"We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States." 339 U. S., at 777.

On this set of facts, the Court concluded, "no right to the writ of habeas corpus appears." Id., at 781.

Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

Not only are petitioners differently situated from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners' constitutional entitlement to habeas corpus. Id., at 777. The Court had far less to say on the question of the petitioners' statutory entitlement to habeas review. Its only statement on the subject was a passing reference to the absence of statutory authorization: "Nothing in the text of the Constitution extends such a right, nor does anything in our statutes." Id., at 768.

Reference to the historical context in which Eisentrager was decided explains why the opinion devoted so little attention to question of statutory jurisdiction. In 1948, just two months after the Eisentrager petitioners filed their petition for habeas corpus in the U. S. District Court for the District of Columbia, this Court issued its decision in Ahrens v. Clark, 335 U. S. 188, a case concerning the application of the habeas statute to the petitions of 120 Germans who were then being detained at Ellis Island, New York, for deportation to Germany. The Ahrens detainees had also filed their petitions in the U. S. District Court for the District of Columbia, naming the Attorney General as the respondent. Reading the phrase "within their respective jurisdictions" as used in the habeas statute to require the petitioners' presence within the district court's territorial jurisdiction, the Court held that the District of Columbia court lacked jurisdiction to entertain the detainees' claims. Id., at 192. Ahrens expressly reserved the question "of what process, if any, a person confined in an area not subject to the jurisdiction of any district court may employ to assert federal rights." Id., 192, n. 4. But as the dissent noted, if the presence of the petitioner in the territorial jurisdiction of a federal district court were truly a jurisdictional requirement, there could be only one response to that question. Id., at 209 (opinion of Rutledge, J.).7

When the District Court for the District of Columbia reviewed the German prisoners' habeas application in Eisentrager, it thus dismissed their action on the authority of Ahrens. See Eisentrager, 339 U. S., at 767, 790. Although the Court of Appeals reversed the District Court, it implicitly conceded that the District Court lacked jurisdiction under the habeas statute as it had been interpreted in Ahrens. The Court of Appeals instead held that petitioners had a constitutional right to habeas corpus secured by the Suspension Clause, U. S. Const., Art. I, §9, cl. 2, reasoning that "if a person has a right to a writ of habeas corpus, he cannot be deprived of the privilege by an omission in a federal jurisdictional statute." Eisentrager v. Forrestal, 174 F. 2d, at 965. In essence, the Court of Appeals concluded that the habeas statute, as construed in Ahrens, had created an unconstitutional gap that had to be filled by reference to "fundamentals." 174 F. 2d, at 963. In its review of that decision, this Court, like the Court of Appeals, proceeded from the premise that "nothing in our statutes" conferred federal-court jurisdiction, and accordingly evaluated the Court of Appeals' resort to "fundamentals" on its own terms. 339 U. S., at 768.8

Because subsequent decisions of this Court have filled the statutory gap that had occasioned Eisentrager's resort to "fundamentals," persons detained outside the territorial jurisdiction of any federal district court no longer need rely on the Constitution as the source of their right to federal habeas review. In Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 495 (1973), this Court held, contrary to Ahrens, that the prisoner's presence within the territorial jurisdiction of the district court is not "an invariable prerequisite" to the exercise of district court jurisdiction under the federal habeas statute. Rather, because "the writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody," a district court acts "within [its] respective jurisdiction" within the meaning of §2241 as long as "the custodian can be reached by service of process." 410 U. S., at 494-495. Braden reasoned that its departure from the rule of Ahrens was warranted in light of developments that "had a profound impact on the continuing vitality of that decision." 410 U. S., at 497. These developments included, notably, decisions of this Court in cases involving habeas petitioners "confined overseas (and thus outside the territory of any district court)," in which the Court "held, if only implicitly, that the petitioners' absence from the district does not present a jurisdictional obstacle to the consideration of the claim." Id., at 498 (citing Burns v. Wilson, 346 U. S. 137 (1953), rehearing denied, 346 U. S. 844, 851-852 (opinion of Frankfurter, J.); United States ex rel. Toth v. Quarles, 350 U. S. 11 (1955); Hirota v. MacArthur, 338 U. S. 197, 199 (1948) (Douglas, J., concurring)). Braden thus established that Ahrens can no longer be viewed as establishing "an inflexible jurisdictional rule," and is strictly relevant only to the question of the appropriate forum, not to whether the claim can be heard at all. 410 U. S., at 499-500.

Because Braden overruled the statutory predicate to Eisentrager's holding, Eisentrager plainly does not preclude the exercise of §2241 jurisdiction over petitioners' claims.9


Rasul v. Dubya, 542 US 466, ___ (2004)

Cheers,
 

I agree with Pete that the brief he pointed to is fairly convincing. Obviously, I'm partial to being convinced, and it likely won't strike the other side in this ongoing debate in the same way.

There are citations in the brief that show to my satisfaction that:

1) Federal district courts have heard cases involving private citizens and non-citizens in Guantanamo Bay. Put another way: the territorial jurisdiction of federal courts already extends to Guantanamo Bay.

2) Habeas was believed to be available to enemy aliens under common law in the US as it was understood in 1814, if not 1789.

and

3) Prior to 1789, common law habeas relief was extended to any area that was under the administration of the government, and not simply those areas deemed to be part of the sovereign territory.

Other than plugging one's ears, covering one's eyes, and screaming "I'm not listening! I'm not listening!" over and over, I'm not sure I can see how Mr. DePalma et al. can continue to hold the position they do.

In my opinion, the only recourse at this point is to argue that the CSRTs already serve the function of habeas review, but obviously there are reasons to suspect that this is not the case.
 

"Bart" DePalma says:

If the Court ignores the express absolute language of the MCA a it did the DTA, I do not think that calling such a blatant outlaw act a "constitutional crisis" is overstating the matter.

If the maladministration (and its Congressional allies) ignore(s) the implied thoughts of the U.S. Supreme Court, and tries to write the Great Writ out of the Constitution on the back of Eisentrager, the Supreme Court may just have to get explicit about it and say in big, bold letters that Eisentrager is toast (although they severely undermined Eisentrager already in Braden.

Cheers,
 

pms_chicago:

There are citations in the brief that show to my satisfaction that:

1) Federal district courts have heard cases involving private citizens and non-citizens in Guantanamo Bay. Put another way: the territorial jurisdiction of federal courts already extends to Guantanamo Bay.


Thanks, Pete and PMS. I was looking for the stuff I'd seen back in 2002 about this, but not finding it (although I saw, pre 542 US 466, my opinions on the ultimate outcome of these same arguments as we're hashing out five years later here and here). I knew I'd seen some cases liek that at that time....

Cheers,
 

Bart said...

Actually, you are doing my argument a great service with your research. Thank you.

The brief is making a distinction without a difference. While the Crown may not have extended political sovereignty over India, they imposed legal sovereignty over India by imposing their law (presumably including habeas corpus) and establishing courts in India to enforce that law.

If, as I suspect, British courts with jurisdiction in India wrote the habeas opinions applying to India which are being cited in this thread, then these opinions hardly stand for the proposition that habeas corpus extends beyond the normal territorial jurisdiction of the court nevertheless beyond the sovereign territory where British law held sway.


You're welcome, but I don't see how I do any service to your original argument, and the new argument you offer here makes no sense. Your new distinction between "political sovereignty" and "legal sovereignty" is far, far afield from what the D.C. Circuit hung its hat on in Boumediene. In any event, as long as the lease is in effect, the U.S. exercises "legal sovereignty" over Gitmo directly comparable to that exercised by Britain in India in 1789 (prior to the formal assertion of sovereignty in 1813). Your argument doesn't take you where you want to go, and the fact that there isn't a "U.S. District Court for Guantanamo Bay" or something comparable is a non sequitur.
 

pms_chicago:

In my opinion, the only recourse at this point is to argue that the CSRTs already serve the function of habeas review, but obviously there are reasons to suspect that this is not the case.

It's interesting to note that the CSRTs were forced on the maladministration, kicking and screaming all the way, after the courts had slapped them silly on the habeas stuff. Had the CSRTs been in place before the habeas fights, the motivations for -- and practical effect of -- such might be looked at a bit less askance. As it is, we have this to consider WRT the sufficiency of the CSRTs:

As the Court explains, the Government has made no demonstration of practical need for these special rules and procedures, either in this particular case or as to the military commissions in general, ante, at 59-61; nor is any such need self-evident. For all the Government's regulations and submissions reveal, it would be feasible for most, if not all, of the conventional military evidence rules and procedures to be followed.

Hamdan v. Rumsfeld, 05-184, 2006

And that's not even going into the logical conundrums involved with asking the detaining party if it is detaining a person unlawfully....

Cheers,
 

PMS_Chicago said...

There are citations in the brief that show to my satisfaction that:

1) Federal district courts have heard cases involving private citizens and non-citizens in Guantanamo Bay. Put another way: the territorial jurisdiction of federal courts already extends to Guantanamo Bay.


I believe these opinions are based on the Courts' interpretation of the habeas statute, not the Constitution. Congress did not address habeas corpus for civilians in the MCA.

2) Habeas was believed to be available to enemy aliens under common law in the US as it was understood in 1814, if not 1789.

Lockington's Case applies PA state law to a civilian enemy alien rather than a enemy combatant and does not reach the merits because the petitioner admitted he was an enemy alien.

Other than plugging one's ears, covering one's eyes, and screaming "I'm not listening! I'm not listening!" over and over, I'm not sure I can see how Mr. DePalma et al. can continue to hold the position they do.

I would contend that the proponents of extending habeas corpus to prisoners or war for the first time in the history of the writ are the ones who are playing see no evil, hear no evil.

I have repeatedly challenged anyone here to provide a US or British Court prior to 1798 which held that habeas corpus allowed foreign enemy combatants or prisoners of war to challenge their wartime detention either within or or without sovereign territory which would form the basis for a constitutional right.

I am still waiting.
 

pete said...

You're welcome, but I don't see how I do any service to your original argument, and the new argument you offer here makes no sense. Your new distinction between "political sovereignty" and "legal sovereignty" is far, far afield from what the D.C. Circuit hung its hat on in Boumediene.

I believe that the petitioners before the D.C. Circuit did make this argument. Rather, this is a brief submitted in the Rasul case. Therefore, the D.C. Circuit was not presented with this distinction to reconcile.

However, I would suggest that legal sovereignty is a subset of the full sovereignty which forms the basis of the D.C. Court opinion and, in fact, legal sovereignty is the only sovereignty which matters for the purpose of habeas corpus.

For example, if Congress enacted a statute stating that federal laws (including habeas corpus) were in effect in any foreign territory occupied by US military forces and created courts to enforce that law, then there would be no question that the new courts with jurisdiction over Gitmo would be able to hear habeas petitions from anyone eligible to bring them even though we do not have full political sovereignty over Gitmo. This is not the case, however. Therefore, the British India precedent has very little application to our case.
 

Reading through the historians' brief, it looks like it decisively refutes most of the nonsense that has been promulgated by the maladministration and by people like "Bart" here.

If "Bart" thinks the brief is wrong, he ought to write his won brief, complete with cites, and rebut the points made by the brief. Absent that, "Bart"'s claims should be dismissed as emptt "proof by repeated assertion".

Cheers,
 

"Bart" DePalma is still
not getting it":

[PMS_Chicago]: There are citations in the brief that show to my satisfaction that:

1) Federal district courts have heard cases involving private citizens and non-citizens in Guantanamo Bay. Put another way: the territorial jurisdiction of federal courts already extends to Guantanamo Bay.

["Bart"]: I believe these opinions are based on the Courts' interpretation of the habeas statute, not the Constitution....


Ahhhh. "Bart" didn't read the brief, I guess. The cited cases go to whether the jurisdiction of U.S. courts reach to civil cases from Guantanamo (i.e., the cite to Huerta v. U.S., 548 F.2d 343 (Ct. Claims) (1977)).

Or "Bart" just didn't bother to read what Pms_Chicago wrote....

[Bart]: ...Congress did not address habeas corpus for civilians in the MCA.

What does that have to do with the price of tea in Sri Lanka?

[Pms_Chicago]: 2) Habeas was believed to be available to enemy aliens under common law in the US as it was understood in 1814, if not 1789.

["Bart"]: Lockington's Case applies PA state law to a civilian enemy alien rather than a enemy combatant and does not reach the merits because the petitioner admitted he was an enemy alien.


Huh? Cites? Quotes? As the brief states, only one judge didn't reach the merits for the reason "Bart" states (but as the brief notes, even this judge thought that he could have contested this through habeas review had he not admitted to being such). If "Bart" thinks they decided something differently, he ought to quote from the opinion. From the brief, Lockington stands for the proposition that habeas was recognised as available to challenge the status of "alien enemy" (even though Lockington lost on court review of this determination [perhaps in part because he admitted he was such]).

"Bart" also ignores (surprise, surprise!) the Laverty v. Duplessis cite.

[Pms_Chicago]: Other than plugging one's ears, covering one's eyes, and screaming "I'm not listening! I'm not listening!" over and over, I'm not sure I can see how Mr. DePalma et al. can continue to hold the position they do.

["Bart"]: I would contend that the proponents of extending habeas corpus to prisoners or war for the first time in the history of the writ are the ones who are playing see no evil, hear no evil.


And "Bart" continues to ignore Schiever (as well as the Three Spanish Sailors) case.

["Bart"]: I have repeatedly challenged anyone here to provide a US or British Court prior to 1798 which held that habeas corpus allowed foreign enemy combatants or prisoners of war to challenge their wartime detention either within or or without sovereign territory which would form the basis for a constitutional right.

"Bart" has consistently failed to produce a case where alleged "foreign enemy combatants or prisoners of war [were denied a right, "prior to 1798", to] challenge their wartime detention either within or or without sovereign territory which would form the basis for a constitutional right".

I note his careful formulation of the specifics here so that the cases to the contrary (arguably) fall outside his carefully constricted scenario. Yet he provides no cases himself in support of the narrow assertion he makes. All we have to go on are the cases, such as cited by the historians' brief, that are somewhat on point, but they go against "Bart"'s claims.

But FWIW, I'd note that the "sovereignty" condition that "Bart" inserts is demolished by the historians' brief, and after Rasul (and Braden, which makes it irrelevant), should be simply laughed at.

Cheers,
 

"Bart" DePalma says:

For example, if Congress enacted a statute stating that federal laws (including habeas corpus) were in effect in any foreign territory occupied by US military forces and created courts to enforce that law, then there would be no question that the new courts with jurisdiction over Gitmo would be able to hear habeas petitions from anyone eligible to bring them even though we do not have full political sovereignty over Gitmo. This is not the case, however. Therefore, the British India precedent has very little application to our case.

The historians addressed this in their brief:

"Amici are unaware of any case before 1789 in which the common law writ of habeas corpus was held not to extend to territory under the crown's exclusive control and jurisdiction. To the contrary, English courts historically resolved any questions about the writ's territorial reach in favor of its availability, and it was only a legislative act explicitly curtailing the writ that could place the executive detention of those imprisoned on territory within the crown's total and exclusive control beyond all habeas corpus review."

Cheers,
 

I have repeatedly challenged anyone here to provide a US or British Court prior to 1798 which held that habeas corpus allowed foreign enemy combatants or prisoners of war to challenge their wartime detention either within or or without sovereign territory which would form the basis for a constitutional right.

...on a Thursday while wearing pink robes.

Arne has a point about the qualifiers that you're tacking on here. If the judges in the Lockington case hold that he could have sought habeas to have his status as an enemy alien redetermined, but could not since he admitted to the status...

As I understand your argument (and I know there are nuances here, but to simplify):

A. Habeas relief was never available, even in potential, to a prisoner of war (in the generic) prior to the Hamdan decision.

and

B. The Constitution is a contract that guarantees the right to habeas as it was understood in 1789.

therefore

C. Since habeas was never available, even in potential, to such people in 1789, then it is not available to such people now.

I think the historian's brief casts some doubt on this proposal. It seems very much that a dispute over status was an appropriate candidate for habeas corpus, but that in the majority of cases involving prisoners of war, it simply wasn't necessary. For example, Quirin's group came ashore with uniforms on and admitted to status as enemy saboteurs. Clearly they were appropriately detained.

But in the current war--which we're reminded almost daily is a new kind of war, unlike those our fathers and grandfathers fought--our true enemies don't wear uniforms or restrict their residence to a single nation-state. They fall into the "thirdness" of the law of war, the dread other that neither desires nor deserves special treatment. Ultimately, I have no sympathy for such terrorists, and you'll find that I'm not a pacifist in the least when the cause is just and the target confirmed.

When a person questions that status, however, that changes the dynamic. To hell with those who have acted against our troops and our country, and may they live forever in "interesting times." But the guy who says "no, not me, I'm not one of those guys" deserves the courtesy of a review of the facts surrounding his detainment.

And apparently, this sentiment was shared by judges at the dawn of the country. The judges of the case o' th' Three Spanish Sailors agree with you, Bart, that "alien enemies and prisoners of war" are not entitled to be set at liberty on a habeas corpus, but not because they have been declared such by the government, but rather because they have themselves acknowledged that status.

When that status is in doubt, habeas was an option under common law to have that status reviewed, a right made explicit in Sylvester's Case (1703) and Sparenburgh v. Bannatyne (1797).

To revisit the argument:

A. Habeas review of detainment was available and was extended to those prisoners of war (in the generic) who questioned their "EPW" status prior to and at the time the Constitution was written.

and

B. The Constitution is a contract that guarantees access to habeas as it was understood in 1789. (I support a "living" interpretation, myself, but for the purposes of parallel structure, I dropped it back in.)

therefore

C. Prisoners of war (in the generic) who question their status today also have the right to habeas review of the facts surrounding their detainment.

That's why I think Pete is right when he says the core of your argument has been gutted by this brief. You can argue that the CSRTs provide the equivalent of habeas review, or you can argue that even though habeas was explicitly granted to POWs that challenged their wartime detention, it was the result of a statutory extension and not the application of a common law writ. The latter would certainly be a prime candidate for inclusion under the right protected by the Suspension clause.

The question becomes: can you find a statute prior to 1789 that extends--temporarily or otherwise--habeas privileges to enemy prisoners of war or enemy aliens?

I know that's turning the tables a bit, but if there wasn't specific statutory authorization that allowed such access, can't we assume it was considered consistent with common law? If so, wouldn't that access be protected under the Suspension Clause?
 

There is great confusion here stemming from Bart's trolling tactics. It is important to remember that even the government does not make the unsupported claim he does -- that habeas review has never been accorded to foreign "enemy comabatants or prisoners of war," regardless of their location. Rather, the government hangs its hat on the jurisdictional situation posed by holding aliens in the particular geography of Guantanamo.
 

PMS_Chicago said...

As I understand your argument (and I know there are nuances here, but to simplify):

A. Habeas relief was never available, even in potential, to a prisoner of war (in the generic) prior to the Hamdan decision.

and

B. The Constitution is a contract that guarantees the right to habeas as it was understood in 1789.

therefore

C. Since habeas was never available, even in potential, to such people in 1789, then it is not available to such people now.


You essentially have my argument.

I think the historian's brief casts some doubt on this proposal. It seems very much that a dispute over status was an appropriate candidate for habeas corpus, but that in the majority of cases involving prisoners of war, it simply wasn't necessary.

I would dearly love to read the actual opinions being cited. The proponents for extending habeas to POWs claim that the King's Bar in cases like Three Spanish Sailors and Schiever reached the merits of whether there was sufficient evidence to hold the petitioners as POWs. However, the proponents do not quote actual passages from these opinions where the courts are considering the facts of the case and hold that there are sufficient facts to find that the petitioner is a POW. Rather, the quotes which are provided in the court opinions considering these cases make it appear that the Courts simply judicially recognized that the Crown had designated the petitioner as a POW and then dismissed the petitions. The other factor which leads me to believe that the King's Bench did not rule on the merits of whether the prisoner was truly a prisoner of war was because the facts given to not indicate that the petitioner was in any way an enemy combatant. The Court simply accepted the designation given by the Crown.

Ultimately, I have no sympathy for such terrorists, and you'll find that I'm not a pacifist in the least when the cause is just and the target confirmed.

When a person questions that status, however, that changes the dynamic. To hell with those who have acted against our troops and our country, and may they live forever in "interesting times." But the guy who says "no, not me, I'm not one of those guys" deserves the courtesy of a review of the facts surrounding his detainment.


I agree and the Geneva Conventions require a status hearing. That is why the military conducts formal status hearings by military courts which are not part of the capturing units.

The policy issue which you are raising is whether a civilian court pursuant to habeas corpus or a military board pursuant to the laws of war would be better equipped to perform this status hearing. Given that the military has been conducting these determinations starting with the Revolution while the civilian courts have never done so argues for allowing the military to conduct these status hearings.

The question becomes: can you find a statute prior to 1789 that extends--temporarily or otherwise--habeas privileges to enemy prisoners of war or enemy aliens?

That question coflates two distinct issues.

It is well established that, when the Government applies the legal system to enemy combatants or aliens and tries them for war crimes, then the writ comes along with the legal system to challenge those war crimes proceedings. That is what Quirin stands for.

However, habeas corpus has never been extended in any statute or common law which has been brought to my attention to allow prisoners of war to challenge their wartime detentions. Unlike in Quirin, detention or enemy combatants for the term of a war is not a product of the legal process. Rather, this detention is a privilege recognized under the law of war and extended to surrendering or incapacitated enemy combatants by the capturing military as an alternative to killing them on the field of battle.

I know that's turning the tables a bit, but if there wasn't specific statutory authorization that allowed such access, can't we assume it was considered consistent with common law? If so, wouldn't that access be protected under the Suspension Clause?

I am not understanding your point.

Habeas corpus was a product of common law. The writ was not unlimited under the common law of that time. Rather, its scope was affirmatively determined by prior decisions.

Under our system, legislation trumps common law and would itself set the scope of the habeas corpus right. Absence of a statute does not mean that common law habeas corpus was unlimited in scope.

In any case, neither the common law nor a federal statute granted POWs habeas rights to challenge their wartime detentions.
 

I don't think it's great confusion. At least, I hope it isn't! :) Hafetz's original post did an outstanding job of outlining the reasons why territoriality should be a non-factor here, and the subsequent discussion of the historians' brief extended those points. The goal of my last post was only to show the steps of a previous comment I had made a bit more clearly, not to declare that Bart's position was identical with that of the government in Boumediene v. Bush--a connection I certainly didn't intend to make.
 

Bart,

As to your supposed "challenge," I believe you have previously been directed to Rex v. Schiever (in which the court reviewed the prisoner's habeas petition to determine if, in fact, he was lawfully detained as a POW) and the Three Spanish Sailors' Case (in which the court refused to release the prisoners only because they were admitted alien enemies). I think the relevant challenge is for you to point to ANY relevant case in which it was held that an alleged enemy alien could not resort to habeas to challenge the necessary predicate to his detention -- his status as an enemy alien.

As for your supposed distinguishing of the Indian cases from the situation at GTMO, you seem to misunderstand the significance of the Indian cases as described fully in the historians' brief. No law need be passed that specifically extends habeas rights to foreign jurisdictions; historically the operation of English law brought habeas with it. That was undoubtedly the case in India, as the 1773 Regulating Act did not specifically extend habeas rights to India, instead only implementing certain aspects of English law. Nonetheless, the Calcutta Supreme Court began issuing writs of habeas corpus as early as 1775, a practice that was uncontroversial as a matter of English habeas precedent (and which remains uncontroversial today; see, e.g., Ex parte Mwenya [1960] 1 QB 241.

U.S. law operates in GTMO, as it has since the lease was signed in 1903 (see Article IV of Treaty Series No. 426). It is that fact that makes the Indian cases a close analogy, and the lack of some statutory extension of habeas rights is utterly irrelevant. Really, all of this has been settled since Cowle, another case you seem to willfully ignore.
 

Bart said...

Under our system, legislation trumps common law and would itself set the scope of the habeas corpus right. Absence of a statute does not mean that common law habeas corpus was unlimited in scope

While what you wrote is I suppose generally true, you're completely misunderstanding PMS_Chicago's point here. It is beyond dispute that, at a minimum, the scope of common law habeas in 1789 is guaranteed as a constitutional right. Congress cannot suspend habeas below the 1789 common law floor absent an invasion or rebellion without providing an adequate alternative remedy.

The point, then, is that absent some pre-1789 statute authorizing the reach of habeas demonstrated by Professor Hafetz and the historians' brief, we must assume that it was common law 1789 habeas that was at issue, which today is constitutional habeas in the U.S.
 

JaO:

There is great confusion here stemming from Bart's trolling tactics....

Indeed. He's a master at "begging the question" and assuming (or simply asserting) his conclusions. And he's also adept at "reframing the question". We shouldn't let hm get by with this (and I try to make every effort to bring him back to the real issues, even as I dispose of the flaws in his attempted side-tracks).

... It is important to remember that even the government does not make the unsupported claim he does -- that habeas review has never been accorded to foreign "enemy comabatants or prisoners of war," regardless of their location. Rather, the government hangs its hat on the jurisdictional situation posed by holding aliens in the particular geography of Guantanamo.

Which, given Rasul (and Braden), should be enough to dispose of his nonsense. His best claim seems to be that no case has directly refuted his unsupported assumption that lack of "sovereignty" defeats jurisdiction for the specific case of constitutional habeas corpus, despite the fact that U.S. court jurisdiction is appropriate for cases arising in Guantanamo in civil cases, the fact that Braden held that jurisdiction for habeas corpus is proper in the territorial jurisdiction of the custodian, the fact that Rasul held that sovereignty (or lack thereof) was no bar to similarly situated (and AFAIK, maybe even some of the same) petitioners there albeit decided on statutory § 2241 grounds, and the fact that the Rasul court distinguished Eisentrager (which may or may not be good law after the undermining of Ahrens) on a number of different grounds amongst the six that Eisentrager said were necessary to the determination. The lack of "sovereignty" was only one of them, and that is quite suspect in and of itself in light of the above cases.

Cheers,
 

"Bart" DePalma says:

The proponents for extending habeas to POWs claim that the King's Bar in cases like Three Spanish Sailors and Schiever reached the merits of whether there was sufficient evidence to hold the petitioners as POWs. However, the proponents do not quote actual passages from these opinions where the courts are considering the facts of the case and hold that there are sufficient facts to find that the petitioner is a POW.

Pot. Kettle. Black.

"Bart" doesn't quote from cases when he even bothers to give case cites at all (rather than simply baldly asserting something). And his admission as to not having read the cases hardly makes his assertions about Lockington's Case.

And his assertion that the court in Lockington's Case "does not reach the merits because the petitioner admitted he was an enemy alien" is at odds with the historians' brief, which claims that only one judge refused to address the merits for this reason. One wonders if he's read the case. Perhaps "Bart" will out with the relevant quote to establish his claim here. And prehaps pigs will fly.

Cheers,
 

"Bart" DePalma:

The policy issue which you are raising is whether a civilian court pursuant to habeas corpus or a military board pursuant to the laws of war would be better equipped to perform this status hearing.

We can disagree over the wisdom of "policy" (and we do). But this is a legal question.

Cheers,
 

"Bart" DePalma says:

[PMS_Chicago]: The question becomes: can you find a statute prior to 1789 that extends--temporarily or otherwise--habeas privileges to enemy prisoners of war or enemy aliens?

That question coflates two distinct issues.

It is well established that, when the Government applies the legal system to enemy combatants or aliens and tries them for war crimes, then the writ comes along with the legal system to challenge those war crimes proceedings. That is what Quirin stands for.


Well, at least "Bart" acknowledges that the Quirin petitioners were allowed to challenge the proceedings against them, even if they lost on the merits....

However, habeas corpus has never been extended in any statute or common law which has been brought to my attention to allow prisoners of war to challenge their wartime detentions....

"Bart" continues to ignore the case that have been cited.

"Bart", translated to English: "Eeeyyyyeee caaannnnnn't heeeaaarrr yooouuuu. Nah-nah-nahhhhhh...."

.. Unlike in Quirin, detention or enemy combatants for the term of a war is not a product of the legal process....

Ummm, right. The petitioners are claiming that in their case it is an illegal process. And that is precisely what a habeas corpus petition is supposed to provide relief from...

... Rather, this detention is a privilege recognized under the law of war....

The petitioners wouldn't think of it as a "privilege". As Lee Hayes said, "If it wasn't for the honor, I'd just as soon not have been blacklisted."

... and extended to surrendering or incapacitated enemy combatants by the capturing military as an alternative to killing them on the field of battle.

"Bart" ingores the fact that the petitioners are now far from the "field of battle" (and that killing them would be an international outrage and a crime). This is a fact that hasn't been lost on the courts so far. Not to mention, a number of them were (at least allegedly) simply rounded up for bounties by warlords in Afghanistan, and not "captur[ed] ... on the field of battle" by U.S. troops.

Cheers,
 

"Bart" DePalma is confoozed:

Habeas corpus was a product of common law. The writ was not unlimited under the common law of that time. Rather, its scope was affirmatively determined by prior decisions.

So then: Before the first case that established any "common law habeas corpus", there was no "affirmatively determined" privilege of habeas corpus. Because there was, at that time, no such "affirmatively determined habeas corpus", the common law courts, doing what "Bart" thinks common law courts should do, denied the writ because of the absence of any such "affirmatively determined habeas corpus". TS for that unlucky SOB. And for the next as well, for the very same reason. And the next and the next and the next .... and now here we are.

Matter of fact, that 'thinking' works for all common law, so "Bart" thinks that the common law simply doesn't exist.

Fortunately, judges aren't as stoopid as "Bart" here, and don't do things that way.

Cheers,
 

"Bart" DePalma says:

In any case, neither the common law nor a federal statute granted POWs habeas rights to challenge their wartime detentions....

... but yet they did, and courts listened to them. Just ask Schiever and the Spanish gents (and the folks that PMS_Chicago cited).

Cheers,
 

Bart: I would dearly love to read the actual opinions being cited. The proponents for extending habeas to POWs claim that the King's Bar in cases like Three Spanish Sailors and Schiever reached the merits of whether there was sufficient evidence to hold the petitioners as POWs.

It is not only proponents who say that. It is the courts.

The D.C. Circuit opinion in Boumediene (which held against those proponents you mention) said without controversy about Schiever: "The court denied him relief because it found ample evidence that he was a prisoner of war."

Bart: The Court simply accepted the designation given by the Crown.

Balderdash. See report of the case quoted in brief here: "Although the Reporter queried the correctness of the decision where duress was involved, the Court held that on Schiever’s 'own shewing' he was 'clearly a prisoner of war, and lawfully detained as such,' 2 Burr. at 766, 97 Eng. Rep. at 552, and the application for the writ was refused."

Other courts also have cited Schiever to stand for the fact that the court in that case did engage in review of the habeas claim. For example Footnote 11 in the Supreme Court majority in Rasul v. Bush: "See, e.g., King v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759) (reviewing the habeas petition of a neutral alien deemed a prisoner of war because he was captured aboard an enemy French privateer during a war between England and France)"

Bart truly has reached a new low in propaganda disguised as legal "argument." Asserting without foundation that if only the original opinions were available for us to read -- which he has not done -- we would discover that all these courts fundamentally misconstrued the cases is not just making stuff up, it is making stuff up that contradicts the citations in cases before us.

There is a reason that Bart is not solicitor general, and a reason why the government does not advance this specious misstatement of law today. It simply is not true.

That is why the administratation relies on its theory of lack of jurisdiction in Guantanamo, not Bart's red herring about prisoners of war. Enough of this charlatan.
 

JaO:

There is a reason that Bart is not solicitor general, and a reason why the government does not advance this specious misstatement of law today. It simply is not true.

That is why the administratation relies on its theory of lack of jurisdiction in Guantanamo, not Bart's red herring about prisoners of war. Enough of this charlatan.


You forget: To "Bart", facts (and actual legal opinions) don't matter, if they get in the way of what he is trying to say.

He's said (twice, after admitting after the first time -- on correction by me -- that he was wrong the first time) that the Supreme Court "held" that the N.Y Times could be found criminally culpable post-publication in the Pentagon Papers case. Takes some balls (or a severely disturbed memory) to state for a second time what you've already admitted is a mistaken claim.

And he's falsely stated the holding in Brown II, despite the fact I pointed out the correct state of legal affairs previously in that thread.

Facts and "Bart" have no acquaintance, and based on past performance, any cites by him to caselaw have to be considered inaccurate until independently shown otherwise, "including the words 'and' and 'the'".

Yes, "Enough of this charlatan".

Cheers,
 

To be fair to Bart, I did encounter a reference today in Hamdan's new Supreme Court brief that acknowledged, at least, that a lower court had found the reading of Schiever to be unclear:

This Court in Rasul correctly read Schiever as proof that suspected enemy aliens can invoke habeas. (FN 12) ...

FN 12: Notwithstanding Rasul, the Hamdan district court deemed it unclear whether Schiever ultimately dismissed the habeas petition on jurisdictional or substantive grounds. App. 12a-13a. But if Schiever was jurisdictional, the English court would have simply accepted the Crown’s assertion that the prisoner was an enemy alien and dismissed the petition outright. Instead, the court reviewed the evidence presented by the petitioner before concluding that he was lawfully detained. 97 Eng. Rep. at 552. The Three Spanish Sailors’ Case, 96 Eng. Rep. 775 (C.P. 1779), provides another example of a prisoner of war invoking the writ. As in Schiever, the court maintained jurisdiction to review the evidence, noting that the prisoners, "upon their own showing, are alien enemies and prisoners of war." Id. at 776.

 

JaO:

To be fair to Bart, I did encounter a reference today in Hamdan's new Supreme Court brief that acknowledged, at least, that a lower court had found the reading of Schiever to be unclear....

I saw that too this morning, reading the Hamdan-Khadr brief. But as noted by the brief, that "well, we don't know" tripeis easily disposed of (and Schiever is far from the only authority cited).

Cheers,
 

"Bart" DePalma, the 'broken record':

["Bart"]: In fact, Congress corrected the Court's revision of the habeas statute twice in the DTA and MCA.

[Arne]: Stop it, "Bart". They did no such thing. They amended the law. They changed it. Should they unamend it and bring the law back to the state pre-Rasul, the same outcome should apply on the same facts as in Rasul.


And more on this giberish from "Bart":

"Congress may not declare by retroactive legislation that the law applicable to that very case was something other that what the court said it was."

Plaut v. Spendthrift Farm, Inc, 514 U.S. 211, 227 (1995)

Cheers,
 

Post a Comment

Older Posts
Newer Posts
Home