Interest and Perspective

Article I, Section 9 of the Constitution prohibits Congress from suspending the writ of habeas corpus except in times of rebellion, that is when the courts are no longer functioning. Congress has just done this, and in two short weeks no less. If this act passes muster in the Supreme Court, we're no longer living in a free country.


Marty Leberman take Julian ku to task at Opinio Juris: Opinio Juris Has the Writ of Habeas Corpus Been Suspended? Nope. (Updated)

Marty Lederman:
Julian: The versions I've seen, including the version the House (and presumably the Senate) approved -- http://makeashorterlink.com/?E11E53DDD -- cut off habeas for all "enemy combatant" aliens, without geographic restrictions (and including, presumably, even POWs). If that's right, it would overrule Quirin (habeas for aliens in the U.S.) and Yamashita (alien in occupied territory), as well as Rasul.


You write: "Congress, rightly or wrongly, has the power to limit the scope of federal court jurisdiction over claims filed by aliens outside the U.S. The Supreme Court has not ruled otherwise, at least not yet."


First of all, what about the power to limit habeas rights of aliens in the U.S. or its occupied territories? Can Congress eliminate that, as it appears to have done here? Second, I will concede that the Court has not yet ruled "otherwise," because it hasn't addressed the question directly. But why are you so certain that Congress "has the power to limit the scope of federal court jurisdiction over claims filed by aliens outside the U.S.," especially in Guantanamo, over which the U.S. has complete control? If you think Congress could not suspend habeas as to detainees we bring to South Carolina, but could suspend it if we instead bring the same detainees to an offshore island, what possible constitutional sense would such a distinction make?


Oh, and by the way: Your title is "Has the Writ of Habeas Corpus Been Suspended? Nope."


Well, it has been suspended. Today it exists for aliens in the U.S., in occupied territories, and at GTMO (and perhaps elsewhere). Tomorrow it won't. It *might* be that this suspension is not one the Suspension Clause recognizes because the persons in question are aliens -- although you've given no basis for that, and the text of the Clause doesn't provide one -- but a suspension it most surely is. Just ask any of the detainees with petitions currently pending.

Marty Lederman:
1. "And I don't think Quirin or Yamashita actually established that the habeas right exists in those cases, which was also not directly considered."

Not so. In each case, the Court rejected the President's assertion that he could deny the detainee the right to challenge the legality of military-commission proceedings (and detention) by writ of habeas corpus. See Quirin, 317 U.S. 1, 25 (1942) ("neither the [President's] Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission"); Yamashita, 327 U.S. 1, 8-9 (1946) ("The courts may inquire whether the detention complained of is within the authority of those detaining the petitioner. . . . [Congress] has not foreclosed their right to contend that the Constitution or laws of the United States withhold authority to proceed with the trial. It has not withdrawn, and the Executive branch of the government could not, unless there was suspension of the writ, withdraw from the courts the duty and power to make such inquiry into the authority of the commission as may be made by habeas corpus.").


2. "[T]he habeas right . . . certainly exists within the territorial U.S. for . . . legal residents."


I take it you mean here a *constitutional* habeas right. If so, I assume this means you agree the bill is unconstitutional as applied to alien residents of the U.S.


3. "It is simply not clear that the Constitution extends all of its rights, including its habeas rights, outside the U.S.- even to occupied territories. Maybe it should, but the Court has never gone that far."


Agreed -- but then, shouldn't the heading of your post be changed from "Has the Writ of Habeas Corpus Been Suspended? Nope." to "Is Congress's suspension of the Writ of Habeas Corpus Unconstitutional? Yes as to resident aliens, but the Question Remains Unresolved as to aliens outside the U.S."?

As one other poster (don't know where or who) said, "Well, at least we get to see what constitutional habeas looks like."