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Sunday, November 13, 2005

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

Lushing_3 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.

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don't you think it's relevant that the magna carta itself, surely the ultimate basis for our framers' notion of habeas, specifically includes protection for citizens of countries with which we [i.e., in that case, England] are at war? now, this is meant to apply to "merchants" who are not actively engaged in combat, and is contingent on the enemies' humane treatment of our own citizen/merchants abroad, but it seems relevant to any contention that habeas has been elastically extended in directions the founding fathers would regard as ridiculous. especially so given that, by all accounts, the majority of current guantanamo detainees were not taken on the field of battle but plucked from Bosnian jails, rendered for bounty by Pakistani militias, and so on. is cursory review of the merits of their cases really some sort of fantastical innovation from which the founders would, and we should, recoil? I submit not.

Posted by: belle waring | Nov 14, 2005 5:24:07 AM

Excuse a layman for being confused. How is it POSSIBLE for Congress to "run afoul of the suspension clause" by enacting what might be considered an incremental suspension of habeus corpus? Certainly we are in a time of invasion (9/11), are we not?

If the Court was lunatic enough in Rasul to hold that enemy combatants have habeus rights, then Congress must be empowered under the suspension clause to suspend those rights. The suspension clause does not just protect habeus corpus rights, it also specifically allows them to be suspended, possibly by the President, certainly by Congress, in circumstances such as those we face today.

Posted by: Alec Rawls | Nov 14, 2005 8:03:17 AM

If you believe in the evolution of conciousness, it appears that we are becoming more global-centric rather than merely nation-centic. The constitution says that all men are created equal. In the past that was taken to mean all white males are equal. Then as we evolved, we included women and people of other races. But we have until now believed that our rights and rules apply only to US citizens. People are starting to ask, if it's good for us shouldn't the same rights be extended to all citizens of the world? So there is a lot of dissonance as we begin to see others, even the "enemy" as fully human and deserving of equal rights.

Posted by: Alda Behm | Nov 14, 2005 9:51:39 AM

I think a respectable argument can be made that the Constitution recognizes the Grand Writ as an inherent power of the courts that legislation can only derogate in the stated emergencies. The Court could decide that 9/11 was a qualifying "invasion" and thus dodge the confrontation and the clash with countervailing precedent.

Senator Graham notably admitted that Congress has been remiss in not providing a procedure by which to give these detainees due process of law, a procedure it could enforce with its purse strings. If this suspension passes, hopefully it will be no more than a temporary measure superseded by a well-debated and legislated scheme.

Posted by: Wintermute | Nov 14, 2005 10:17:57 AM

I agree with everything Belle says except for the "majority" claim, which I don't know the truth of and somewhat doubt if Belle does (despite my respect for her). I would also add (without fleshing out the claim) that the legal status of Guantanamo detainees is dis-analogous to the status of soldiers in a foreign army, especially as they do not have POW status.

As to the second comment, calling a very serious attack four years ago a continuing invasion (it would have to be continuing for it to justify suspension), is insane and possibly (only possibly) indicative of a dangerous strain of thought that 9/11 justifies things having little to nothing to do with it.

Posted by: washerdreyer | Nov 14, 2005 3:57:51 PM

Washerdryer said, "As to the second comment, calling a very serious attack four years ago a continuing invasion (it would have to be continuing for it to justify suspension), is insane and possibly (only possibly) indicative of a dangerous strain of thought that 9/11 justifies things having little to nothing to do with it."

Just because there's been only one successful attack doesn't mean that things have been quiet the last four years. Abdullah al-Muhajir (nee' Jose Padilla) wasn't the only follow-up attacker sent. He was simply one of the few whose failures made it into the papers. In an effort to prevent Al Queda from learning from their mistakes, the government is keeping quiet about their successes playing D.

Posted by: Cybrludite | Nov 15, 2005 12:58:12 AM

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