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

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

Suspension Clause Relationship to Detainees

Separate from, but related to, the jurisdictional arguments of the detainees are their claims under the Suspension Clause (48) of the Constitution. The Supreme Court held in 2001 that the Suspension Clause protects the writ of habeas corpus "as it existed in 1789," when the first Judiciary Act created the Federal court system and granted jurisdiction to those courts to issue writs of habeas corpus. Before the DC Circuit in the Boumediene appeal, however, appellants argued that in 1789, the privilege of the writ extended to aliens outside the sovereign's territory.

Unfortunately, in none of the cases cited by appellants were the aliens outside the territory of the sovereign. More significantly, the historical antecedents in England upon which U.S. practice is based show that the writ was simply not available in any land not the sovereign territory of the Crown. As Lord Mansfield explained in Rex v. Cowle, (49) cited with authority in Boumediene, "To foreign dominions ... this Court has no power to send any writ of any kind. We cannot send a habeas corpus to Scotland, or to the electorate; but to Ireland, the Isle of Man, the plantations [American colonies] ... we may." Each territory that Lord Mansfield cited as a jurisdiction to which the writ extended was a sovereign territory of the Crown at the time.

Given the clear history of the writ in England prior to the founding of this country, habeas corpus would not have been available to aliens in the United States in 1789 without presence or property within its territory. This is borne out by the Supreme Court's 1950 decision in Johnson v. Eisentrager, noted earlier, where the Court said, "Nothing in the text of the Constitution extends such a right, nor does anything in our statutes." Similarly, the majority in Boumediene in 2007 observed, "We are aware of no case prior to 1789 going the detainees' way, and we are convinced that the writ in 1789 would not have been available to aliens held at an overseas military base leased from a foreign government."

The Way Forward

The limitations inherent in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 are obvious. Their provisions only address detention of enemy combatants at the U.S. Naval Base at Guantanamo. The requirements inherent in the war on terror will likely warrant expansion of habeas corpus limitations through broader congressional mandates and further amendment of 22 U.S.C. 2241 (habeas statute). It is clear, for example, that challenges to the detention of enemy combatants in Iraq held by the U.S. Government will be the next step in the detainee litigation process.

The provisions of the Military Detainees Act and the Military Commissions Act, having solved half the problem (possibly less depending on the resolution of the writ of certiorari in Boumediene), nevertheless provide the legislative roadmap to proscribe habeas jurisdiction for enemy combatants held elsewhere in the current conflict. For those enemy combatants held in U.S. custody in Iraq and/or Afghanistan, it is hard to believe that U.S. courts, now that the distinction of foreign confinement is removed, will not have to face the question of whether the insurgency in either or both nations currently constitutes a "rebellion or invasion" vis-a-vis the United States. If it does not, without legislation applicable to the specific incarceration facilities in Baghdad or Kabul, for example, Rasul would appear to dictate that these petitioners would have access to any of the U.S. district courts.