Habeas Corpus

• Pages: 98-101

Page 98

The Petitioners in the following case are aliens detained at the Guantanamo Bay prison camp who have been designated "enemy combatants" by the Combatant Status Review Tribunals (CSRTs). They had been apprehended in Afghanistan, Bosnia, Gambia, and at other foreign locations. With the "Authorization for Use of Military Force" (AUMF), Congress empowered the President "to use all necessary and appropriate force against those ... [who] planned, authorized, committed, or aided the terrorist attacks ... on September 11, 2001."

The Petitioners denied any involvement in the terrorist network that carried out the attacks, and in 2002 sought writs of habeas corpus in federal district court in the District of Columbia. The district court dismissed because Guantanamo is outside of the court's territorial jurisdiction. The U.S. Court of Appeals for the District of Columbia Circuit affirmed, but the U.S. Supreme Court reversed because 28 U.S.C. § 2241 extended statutory habeas jurisdiction to Guantanamo. Rasul v. Bush, 542 U.S. 466, 473 (2004).

While the Petitioners' appeals were pending, Congress passed the Detainee Treatment Act of 2005 (DTA), Section 1005(e); it amended Section 2241 to give the U.S. Court of Appeals for the District of Columbia Circuit exclusive jurisdiction to review CSRT decisions. The Supreme Court held his provision inapplicable to cases (like the present one) pending when the DTA was enacted. Hamdan v. Rumsfeld, 548 U.S. 557, 576-577 (2006). Congress then passed the Military Commissions Act of 2006 (MCA), whose Section 7(a) amended Section 2241(e)(1) to deny jurisdiction for habeas petitions that were pending at the time of its enactment. Consequently, the District of Columbia Circuit held that it lacked jurisdiction to hear the Petitioners' cases. Boumediene v. Bush, 476 F.3d 981 (D.C. 2007). Petitions sought certiorari, which the U.S. Supreme Court granted.

The Supreme Court reverses and remands. Justice Kennedy delivered the majority opinion of the Court, joined by Justices Stevens, Souter, Ginsburg and Breyer. Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito filed a dissent. Justice Scalia fi led a dissent in which Chief Justice Roberts and Justices Thomas and Alito joined.

The majority holds that: (1) if MCA Section 7(a) is valid, the Petitioners' cases must be dismissed. (2) However, Petitioners have the constitutional Page 99 privilege of habeas corpus, which is not abridged by their status as enemy combatants or their presence in Guantanamo. The Suspension Clause (U.S. Const., Art. 1, §9, cl. 2) provides: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." This clause has full eff ect in Guantanamo. The Court rejects the Government's argument that Petitioners have no habeas rights because Cuba maintains sovereignty over Guantanamo, not the U.S. (3) The DTA's procedures for reviewing the detainees' status are not a sufficient substitute for habeas corpus, MCA Section 7(a) causes its unconstitutional suspension. (4) There may be substitutes for habeas corpus, but they would need to provide a meaningful opportunity to show that the law is erroneously applied. Also, the court must have the ability to correct the errors, consider the Government's evidence as well as exculpatory evidence. (5) Petitioners have met their...