Guest OpEd: Cardozo CrimProf Peter Lushing on Guantanamo Detainees and Suspension of the Writ

Has the Senate Voted to Suspend the Writ?

By Peter Lushing, Benjamin N.Cardozo School of Law ([email protected])

On November 10 the Senate, in what may not be its final vote on the matter, approved an amendment to a military budget bill that would deprive the enemy combatants at Guantanamo Bay of federal habeas corpus. The bill would overturn the June 2004 Supreme Court opinion in Rasul v. Bush, 542 U.S. 466. This action of the Senate has excited much interest as a possible violation of the Suspension Clause of the Constitution, Article I, Section 9, Clause 2:

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.

I propose that “habeas corpus” in this provision is not the same, and is in fact of smaller scope, than the statutory phrase “habeas corpus” in the Rasul decision, which construed 28 USC 2241, subdivision (a), granting federal courts power to grant writs of “habeas corpus”. Rasul did not actually focus on the phrase “habeas corpus”; it was concerned with other phrases from the habeas chapter of the United States Code, such as “within their respective jurisdictions”. But the Court was concerned with the scope of the writ. We know, or think we know, what “habeas corpus” in the statute is, but is it the same as “habeas corpus” in the Suspension Clause?

The case for the negative is, to put it in the language of talk radio, the guys in the powdered wigs would have flipped over the idea that habeas extends to foreigners we are in combat with who have been captured and are being held by us abroad. While this crude formulation may hardly be equal to the scholarship the issue demands, it is hard to brush the conclusion off inelegantly though it may have been stated. If statutory habeas does extend to the Guantanamo detainees (an unarguable proposition, given that the Supreme Court is the ultimate authority on the meaning of a federal statute) does it ineluctably follow that Congress may not narrow the reach of the statute without running afoul of the Suspension Clause?

I maintain that Congress can constitutionally exclude the detainees, at least insofar as the core of the Suspension Clause is concerned (collateral issues involving tampering with jurisdiction over pending cases and the like are other matters): First, the Rasul decision, or more properly, given the convention that the Court only divines Congressional intent, Congress itself, has extended habeas far beyond what anybody alive during the ratification of the Constitution would have envisioned. True, Rasul cited a variety of cases seemingly showing that the common law understanding of the reach of habeas extended outside of what we think of a country’s territory (but none of these cases seemed to involve non-citizens allegedly in combat with the sovereign. Did the framers intend to constitutionalize a reach of habeas to alien prisoners of war being held abroad? Unlikely.

Second, if the Rasul Court goofed (if it did not correctly divine Congressional intent) it is a commonplace to be encouraged that Congress politely correct the Court by amending the statute. Could such a correction be what the Framers envisioned when they strove to preserve the Great Writ by prohibiting its “suspension”?

Rasul noted that habeas has evolved over the past two centuries: the habeas statute clearly has expanded the writ "beyond the limits that obtained during the 17th and 18th centuries. 542 U.S. at 474. But why would the Suspension Clause automatically grow in tandem with all expansions of statutory habeas no matter how far-fetched in the eighteenth century? A built in ratchet would mean that the framers intended any expansions due to temporary conditions, or even the product of colossal legislative mistakes, to be irremediable, frozen in time absent constitutional amendment. Bitter experience with an ill-conceived expansion of habeas would be of academic interest only, and while I myself am an interested academic, I see the Constitution as more concerned with governance than with intellectual stimulation.