1、Chapter 25 - Suspending the Great Writ,2,Habeas Corpus,What does the Latin “habeas corpus“ mean? Where did the right of habeas corpus originate? Is it provided for in the US constitution? Does this also make it available for state arrests and detentions?,3,Types of Detentions,Administrative Quaranti
2、ne/Isolation Mental health commitment Criminal / National Security Material witnesses Bail reform act Non-prisoner of war preventive detention,4,The Habeas Corpus Petition,What are the basic requirements for habeas corpus? What is the legal authority to hold the person? What is the factual basis for
3、 falling under the law? Contesting factual information If there are issues other than legal issues, the detained person must be allowed to be testify Can be by video - TB hearings,5,The (Anti-)Suspension Clause,“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases
4、of Rebellion or Invasion the public Safety may require it.” How is rebellion different from war? Is there a rebellion or an invasion? Is public safety conjunctive or disjunctive? Are the conditions met for the suspension clause?,6,Suspension of the Writ,Does it clearly specify who can suspend it? Wh
5、ere is this provision in the Constitution? Congressional Powers? Presidential Powers Why was suspending habeas corpus such an issue in the Civil War?,7,Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861),What had Lincoln done? Chief Justice Taney: I had supposed it to be one of those points in constitutional
6、 law upon which there was no difference of Opinion . . . that the privilege of the writ could not be suspended, except by act of congress. Did Lincoln obey the opinion?,8,Lincolns Response,“all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated. .
7、. . The Constitution itself, is silent as to which, or who, is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called to
8、gether; the very assembling of which might be prevented, as was intended in this case, by the rebellion.“,9,Ex Parte Milligan, 71 US 2 (1866),During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a
9、 purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admix
10、ture of any element not required to form a legal judgment. Are we there yet with 9/11?,10,The Facts,Where did this happen? Was Milligan a rebel soldier? Was he a soldier in the Union Army? How was he arrested and tried? Were the civilian courts open?,11,What is the Real Issue?,Does abolishing the wr
11、it do away with the 5th amendment? that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment by a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger, nor be deprived o
12、f life, liberty, or property, without due process of law.“ What does Lincoln accomplish by abolishing the writ? Why was the Bush administration so opposed to allowing the writ at Guantanamo?,12,Suspending the Writ,Merryman tells us that the President cannot suspend the writ - how was he authorized t
13、o suspend it in this case? Was this a constitutional delegation of power? Why did the court say that whether or not the president had the power to suspend the writ, it could not be done in this case? Why does this also prevent the use of a military tribunal for civilians?,13,When Can the Writ be Sus
14、pended?,If the writ can only be suspended when the courts are not open, what does this imply about the society at that time? What can congress do in its authorization to suspend the writ? Why is this called martial law? Is suspending the writ the real issue, or is it really suspending the constituti
15、on? Why was this an issue in Katrina?,14,Limiting the Jurisdiction of the Federal Courts to hear Habeas Corpus Petitions,Is Habeas Corpus part of the original jurisdiction of the United States Supreme Court? If not, then were does the court get the jurisdiction? If Congress gives the jurisdiction, c
16、an it take it back? Ex parte McCardle What is your argument that the constitutional provision for the writ implies that the court must be able to review it?,15,Military Order of November 13, 2001,(1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and
17、 (2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individuals behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) an
18、y international tribunal. . . .,16,Rasul v. Bush, 124 S.Ct. 2686 (2004),Are these US citizens or permanent resident aliens? Are they on US soil? What does Eisentrager tell us the result should be?,17,The Status of Guantanamo,What is the key legal inquiry in this case? What were the insular cases? Wh
19、at do they tell us that might mitigate Eisentrager? How did we get Guantanamo? How long have we held it? Any evidence we are ever going to let it go? How does this make the case more like an insular case than like Eisentrager?,18,What is a Fundamental Constitutional Right?,What rights do the residen
20、ts of an insular case territory get? Has Congress imposed any rights in Guantanamo? What are you left with? Might habeas corpus apply even when other rights are not available? “At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the re
21、alm, as well as the claims of persons detained in the so-called exempt jurisdictions, where ordinary writs did not run, and all other dominions under the sovereigns control. . . .“,19,The Habeas Statute,Congress has granted federal district courts, within their respective jurisdictions, the authorit
22、y to hear applications for habeas corpus by any person who claims to be held in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. 2241(a), (c)(3). Does this make a fundamental right?,20,History of Habeas Corpus,Executive imprisonment has been considered opp
23、ressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive re
24、straint. Why is this important to the case?,21,Distinguishing Eisentrager,What was the status of the persons in Eisentrager? How do the Guantanamo detainees differ? They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggressio
25、n against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.,22,The Legal Core of Ei
26、sentrager,Eisentrager assumed that a district court in the US did not have jurisdiction to over an order in Germany. Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 495 (1973) .the prisoners presence within the territorial jurisdiction of the district court is not an invariable prerequis
27、ite to the exercise of district court jurisdiction under the federal habeas statute. Rather, because the writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody, a district court acts within its respective jur
28、isdiction within the meaning of 2241 as long as the custodian can be reached by service of process. Can the Custodian be served for Guantanamo cases?,23,The Rasul Courts Habeas Corpus Holding,In the end, the answer to the question presented is clear. Petitioners contend that they are being held in f
29、ederal custody in violation of the laws of the United States.15 No party questions the District Courts jurisdiction over petitioners custodians. Cf. Braden, 410 U.S. at 495. Section 2241, by its terms, requires nothing more. We therefore hold that 2241 confers on the District Court jurisdiction to h
30、ear petitioners habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base.,24,What about the Alien Tort Claim Statute, 28 USC 1350?,The courts of the United States have traditionally been open to nonresident aliens. And indeed, 28 U.S.C. 1350 explicitly confers the
31、 privilege of suing for an actionable tort . . . committed in violation of the law of nations or a treaty of the United States on aliens alone. The fact that petitioners in these cases are being held in military custody is immaterial to the question of the District Courts jurisdiction over their non
32、habeas statutory claims.,25,How did Kennedy Distinguish Rasul from Eisentrager?,The facts here are distinguishable from those in Eisentrager in two critical ways, leading to the conclusion that a federal court may entertain the petitions. First, Guantanamo Bay is in every practical respect a United
33、States territory, and it is one far removed from any hostilities. . . . The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status.,26,How does this Narrow the Majority Opinion?,Indefinit
34、e detention without trial or other proceeding presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are
35、 taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker. Why is this an importa
36、nt limitation?,27,The Dissent,What was Scalia worried about in Rasul? In abandoning the venerable statutory line drawn in Eisentrager, the Court boldly extends the scope of the habeas statute to the four corners of the earth. Would Rasul apply in Iraq? Afghanistan? What does Kennedys concurrence tel
37、l us about the facts that may have driven Rasul?,28,The Detainee Treatment Act of 2005,(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider (1) an application for a writ of habeas corpus filed by or on b
38、ehalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or (2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who (A) is currently in military custody; or (B)
39、has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.,29,The Second Run at Denying Habeas Corpus to Guan
40、tanamo Detainees,(1) 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 who has been determined by the United States to have been properly detained as an enemy combatant or
41、 is awaiting such determination. (2) Except as provided in 1005(e)(2) and (e)(3) of the DTA no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditi
42、ons of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.,30,Boumediene v. Bush, 128 S. Ct. 2229 (2008),Rasul dealt with the statutory right to habeas
43、 corpus Congress then amended the statute to prevent a statutory right of review This case deals with whether there is a constitutional right to habeas corpus for these detainees Limitations: “We do not address whether the President has authority to detain these petitioners nor do we hold that the w
44、rit must issue.“,31,Guantanamo as Sui Generis,“Recent scholarship points to the inherent shortcomings in the historical record. And given the unique status of Guantanamo Bay and the particular dangers of terrorism in the modern age, the common-law courts simply may not have confronted cases with clo
45、se parallels to this one. We decline, therefore, to infer too much, one way or the other, from the lack of historical evidence on point.“ Remember Kennedys limitation on Rasul - is this the same caveat?,32,Who Decides Whether the US is Sovereign over a Territory?,If the military captures land, who d
46、ecides whether we can keep it? (Independent of international law concerns.) Who does the court say it would defer to to decide whether sovereignty is being exercised in a territory? We therefore do not question the Governments position that Cuba, not the United States, maintains sovereignty, in the
47、legal and technical sense of the term, over Guantanamo Bay. But this does not end the analysis. Our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory.,33,The Separation of Powers Doctrine Problem with Guantanamo,The nece
48、ssary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to gov
49、ern without legal constraint. Can sovereignty be abolished? What if Cuba had tried to assert the sovereignty that we claim we do not have over Guantanamo Bay?,34,Factors Determining the Reach of the Suspension Clause,(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoners entitlement to the writ.,35,The Status of the Detainees,
