Supreme Court Report

The Reach of the Writ

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The right to habeas corpus may be one of the bedrock principles of Anglo-American law, but the long and largely fruitless litigation over the prisoners held at Guantanamo Bay, Cuba, has shown there remains much doubt about the reach of this right.

Last month, the U.S. Supreme Court voted 6-3 to turn away, at least for this term, a constitutional challenge to the government’s decision to deny habeas hearings to nearly 400 prisoners still held at Guantanamo.

The cert denial in the combined cases–Boumediene v. Bush, No. 06-1195, and Al Odah v. United States, No. 06-1196–lets stand a February ruling by the U.S. Court of Appeals for the District of Columbia Circuit. The appeals court voted 2-1 to uphold a federal law that denied federal court jurisdiction over habeas petitions filed by detainees classified as enemy combatants. That left the detainees with the option of asking the D.C. Circuit to review the military’s decision to classify them.

The action also leaves unresolved the basic question the cases sought to answer: Is the privilege of habeas corpus limited to American citizens and to U.S. territory, or does it follow U.S. authority beyond the borders?

“It is time we get a definitive answer on Guantanamo: Is it lawful or not?” says Joseph Margulies, a Northwestern University law professor and co-counsel for the detainees. “Our position is there are no United States prisons that are beyond the law,” he says. However, Justices John Paul Stevens and Anthony M. Kennedy issued a memo explaining that they voted against hearing the appeals because the lawyers for the Guantanamo detainees failed to exhaust all the available remedies in the law. They were referring to a provision in the Detainee Treatment Act, adopted two years ago by Congress, that said these foreign-born military prisoners may seek a review of their cases in the D.C. Circuit.

On the other hand, three justices–Stephen G. Breyer, David H. Souter and Ruth Bader Ginsburg–dissented and said the habeas questions “deserve the court’s immediate attention.” Four justices are needed to grant cert.

“It is unreasonable to suggest that the D.C. Circuit in future proceedings under the DTA will provide review that affords petitioners the rights that the circuit already has concluded they do not have,” Breyer wrote.

Not Entirely Expected

The decision to deny the cases surprised many lawyers and court observers. Among them was Miami attorney Neal R. Sonnett, who chairs the ABA’s Task Force on Treatment of Enemy Combatants. The ABA, which has opposed the legislation stripping habeas relief, was in the process of preparing an amicus when the cert denial was announced, says Sonnett.

Sonnett echoes the observations of some court experts that Stevens was unsure whether the court could garner a five-vote majority to restore habeas rights. Stevens wrote the majority opinions in two key Supreme Court cases involving Guantanamo detainees, Rasul v. Bush, 542 U.S. 466 (2004), and Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). “The last thing any of us wants is to see the Supreme Court uphold provisions of the Military Commissions Act and deny habeas relief forever,” says Sonnett, referring to the statute passed by Congress last year that bars any federal court from hearing a Guantanamo detainee habeas claim.

Meanwhile, the ABA will lobby Congress, which was considering several bills to restore habeas relief and to make other changes that would bring the military commissions in line with traditional rules of military justice, Sonnett says.

Indeed, advocates for the detainees have derided the process as a sham. Since the detainees cannot challenge evidence against them–and sometimes cannot even see it–there is no factual record to review in the appeals court, they say.

“What you have here is a punt for a year, and after five years of delay already,” says Hina Shamsi, a lawyer for Human Rights First.

She points out that the D.C. Circuit had already ruled that the Guantanamo detainees have no constitutional rights. Boumediene, 476 F.3d 981. So there is virtually no chance any of them will win relief in the appeals court. That means their lawyers likely will go back to the Supreme Court sometime next year after losing in the D.C. Circuit.

However, Richard Samp, counsel for the Washington Legal Foundation, calls the court’s action “welcome news.”

“It makes little sense for the courts to permit detainees to make an end run around the procedure [set in law by Congress] by filing habeas petitions,” Samp says. He concedes, however, that the delay is only temporary. “One way or the other, the U.S. Supreme Court will eventually decide the ultimate issue in these cases: Are nonresident aliens with no ties to the U.S. entitled to invoke the protections of the U.S. Constitution?” From the start, Bush administration lawyers have maintained the federal courts have no role in overseeing the military prison at Guantanamo, and they have prevailed repeatedly before federal judges.

“The ‘privilege of litigation’ does not extend to aliens in military custody who have no presence in any territory over which the United States is sovereign,” said the D.C. Circuit in 2003. Al Odah, 321 F.3d 1134.

That decision relied heavily on the post-World War II case of 21 Germans who were convicted of war crimes in a military court. In Johnson v. Eisentrager, 339 U.S. 763 (1950), the Supreme Court said “an enemy alien [who] has never been or resided in the United States” has no constitutional right to bring a writ of habeas corpus to federal court. For lawyers working on behalf of Guantanamo detainees, Eisentrager posed a formidable obstacle. But the Supreme Court managed to work around it in Rasul when it initially extended habeas rights to the imprisoned men at Guantanamo.

Stevens said that those who claim to be “wholly innocent of wrongdoing” deserve a right to be heard. He put together a 6-3 majority for a narrow holding: The federal habeas statute authorizes federal judges to decide “the legality of executive detention of aliens in a territory over which the United States exercises plenary and exclusive jurisdiction, but not ultimate sovereignty.”

That phrase, of course, describes the U.S. naval base at Guantanamo Bay. While it is the sovereign territory of Cuba, the U.S. Navy has a permanent lease on the base and exercises total control.

A Site That Fit the Bill

“no location was perfect, but the U.S. Naval Station at Guantanamo Bay, Cuba, seemed to fit the bill” because it was beyond the reach of the federal courts, wrote John Yoo, the former Justice Department lawyer who helped craft the administration’s legal strategy.

Rasul seemed to deal a blow to the administration’s plans. But those assessments proved wrong. Even in the wake of Rasul, no habeas hearings were held before judges.

Last year, the Republican-controlled Congress moved to reverse Rasul. “No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States … as an enemy combatant,” Congress said in the Military Commissions Act. And, according to the statute, this bar to habeas claims “shall apply to all cases, without exception.” However, Congress gave the D.C. Circuit exclusive jurisdiction to review the decisions of combatant status review hearings at Guantanamo, where military officers examined the evidence to see whether the detainees were enemy combatants.

Yet the detainees at those hearings were not provided lawyers, nor were they given the right to challenge or even see the evidence against them.

Ultimately, even if Congress restores habeas rights to the detainees, that legislation is subject to a veto. It still may be up to the Supreme Court to deal with the thorny–as yet unanswered–question: Did Congress suspend the writ when it passed the Military Commissions Act, or did it simply clarify its reach?

“Hopefully, this is no more than a temporary snag,” says the ABA’s Sonnett. “It’s always been understood that while judicial review is critical, so is congressional action.”

David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal. Richard Brust, an assistant managing editor for the ABA Journal, contributed to this story.

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