Legal Opinions - U.S. Supreme Court: June 30, 2008

Daily Record, The (Baltimore), Jun 30, 2008

A diligent search of founding-era precedents and legal commentaries reveals no certain conclusions. None of the cases the parties cited revealed whether a common-law court would have granted, or refused to hear for lack of jurisdiction, a habeas petition by a prisoner deemed an enemy combatant, under a standard like the Defense Department's in these cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control. The evidence as to the writ's geographic scope at common law was informative, but, again, not dispositive.

Petitioners argued that the site of their detention was analogous to two territories outside England to which the common-law writ ran, the exempt jurisdictions and India, but critical differences between those places and Guantanamo rendered these claims unpersuasive.

The Government argued that Guantanamo was more closely analogous to Scotland and Hanover, where the writ did not run, but it was unclear whether the common-law courts lacked the power to issue the writ there, or whether they refrained from doing so for prudential reasons.

The parties' arguments that the very lack of a precedent on point supported their respective positions were premised upon the doubtful assumptions that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before the Court.

The Suspension Clause has full effect at Guantanamo. The Government's argument that the Clause affords petitioners no rights because the United States did not claim sovereignty over the naval station was rejected.

The Court did not question the Government's position that Cuba maintains sovereignty, in the legal and technical sense, over Guantanamo, but it did not accept the Government's premise that de jure sovereignty is the touchstone of habeas jurisdiction. Common- law habeas' history provides scant support for that proposition, and it is inconsistent with the Court's precedents and contrary to fundamental separation-of-powers principles.

Discussions of the Constitution's extraterritorial application in cases involving provisions other than the Suspension Clause undermined the Government's argument.

Fundamental questions regarding the Constitution's geographic scope first arose when the Nation acquired Hawaii and the noncontiguous Territories ceded by Spain after the Spanish-American War, and Congress discontinued its prior practice of extending constitutional rights to territories by statute.

In the so-called Insular Cases, the Court held that the Constitution had independent force in the territories that was not contingent upon acts of legislative grace. See, e.g., Dorr v. United States, 195 U.S. 138. Yet because of the difficulties and disruption inherent in transforming the former Spanish colonies' civil-law system into an Anglo-American system, the Court adopted the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories. See, e.g., id., at 143.