Habeas corpus and the detention of enemy combatants in the war on terror

Joint Force Quarterly, Jan, 2008 by James P. Terry

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Since the al Qaeda attacks on the World Trade Center and Pentagon on September 11, 2001, the United States has been engaged in an armed conflict that rivals more traditional conflicts in its brutality and carnage. Like other enemies we have faced in the past--the North Vietnamese, North Koreans, Japanese, and Germans--al Qaeda and its affiliates possess both the ability and the intention to inflict catastrophic harm, if not on this nation, then on its citizens. But unlike our more conventional enemies, al Qaeda members show no respect for either the humanitarian law applicable to the victims of conflict reflected in the 1929 and 1949 Geneva Conventions or the laws applicable to the conduct of hostilities found in The Hague Conventions of 1899 and 1907.

Al Qaeda forces are, in fact, specifically organized to violate the precepts of the law of armed conflict: they do not wear uniforms; they do not carry arms openly; they do not have an organized command structure; and, most importantly, they direct their attacks against noncombatants (that is, innocent civilians). Considering the nature of this adversary, we cannot expect that this conflict will conclude around a negotiating table.

Recognizing this threat and moving to preclude further attacks on our homeland, U.S. forces have captured enemy combatants and terrorists on battlefields in Africa and Europe, as well as in Afghanistan, Iraq, and Southwest Asia. Patterning its actions on past conflicts, the United States has determined it necessary to detain these combatants until the conclusion of hostilities, if only to preclude their return to the battlefield. Soon after the September 11 attacks, the Bush administration determined the need to establish a detention facility outside American territory at the U.S. Naval Base at Guantanamo Bay. This would permit effective detention without the legal requirement to entertain continual court suits by the detainees. Prior to this conflict, alien detainees held on foreign soil were denied access to U.S. Federal courts to contest detention (habeas corpus). The spate of lawsuits and legislation arising from the detention of alien combatants at Guantanamo since 2002 has led, over the last 5 years, to refinement in the law regarding detainees and further explication of the law of habeas corpus during armed conflict. This paper explains that process.

Historical Antecedents

In U.S. history, aliens held by our military forces in foreign territory have not been entitled to the civilian remedy of habeas corpus in the Federal Courts because these courts had no jurisdiction over the land on which they were being held. As the Supreme Court explained over 50 years ago in Johnson v. Eisentrager, (1) "[w]e are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an enemy alien who, at no relevant time and in no stage of his captivity, has been within the territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes." (2) The implementing legislation, 28 U.S.C. 2241, similarly limited access to the courts to those within its jurisdiction. (3)

An underlying concern in granting access to U.S. courts to alien combatants detained abroad during armed conflict, quite apart from the jurisdictional element, relates to the nature of warfare. The witnesses who would be needed to provide personal testimony and rebut the aliens' contentions in a judicial forum, as opposed to an administrative one, are engaged in military operations or subject to commitment to combat. Requiring them to leave their units and appear in habeas proceedings would be both disruptive and divisive. The original documents necessary to present the Government's position would likely not be available until all hostilities are concluded. Identification and transport of foreign witnesses demanded by the detainees for inperson testimony would often prove infeasible, if not logistically impossible. Moreover, there is no authority over such foreign witnesses and their appearance could not be assured.

In fact, the historical common law underpinnings of the legal right to habeas corpus, and its limitations, reflect many of the tenets of the Eisentrager case. The history of habeas corpus as the "symbol and guardian of individual liberty" (4) for English and now American citizens is well established. What we know now as the "Great Writ" originated as the "prerogative writ of the Crown," (5) its original purpose being to bring people within the jurisdiction into court, rather than out of imprisonment. (6) By the early 13th century, the use of the writ to bring people to court was a commonly invoked aspect of English law. (7)

The reformation of the writ to one in which freedom from incarceration was the focus can be traced to the 14th century when, as an aspect of the Norman conquest, the French developed a centralized judicial framework over existing local courts. During this period, prisoners began to initiate habeas proceedings to challenge the legality of their detention. The first such use was by members of the privileged class who raised habeas claims in the superior central courts to challenge their convictions in the local inferior courts. The central courts would often grant such writs to assert the primacy of their jurisdiction. Thus, the rationale behind the grant of these writs more often focused on the jurisdiction of the particular court than concerns over the liberty of the petitioners.