Friday, February 23, 2007

Boumediene And Habeas - It's Time For The Supreme Court To Answer Two Questions

The recent D. C. Circuit decision continued a fairly long line of habeas corpus/ suspension cases that fail to address, often explicitly, two fundamental questions regarding the privelage of habeas corpus and when it can be constitutionally suspended: 1) to what extent has the right of habeas corpus developed to include circumstances beyond those that existed in the common law in 1789; and 2) does the Constitution, through the Suspension Clause or one or more of the Fifth, Sixth, or Fourteenth Amendments, provide an affirmative right of habeas corpus beyond that which exists by statute or the common law. Boumediene v. Bush highlights the need for a Supreme Court ruling addressing these questions and will hopefully provide the vehicle.

Boumediene v. Bush is the most recent Court of Appeals case regarding Guantanamo detainee Habeas Corpus rights. In a two to one decision the Court held that the Military Commissions Act withdrew jurisdiction to hear the case and that there was no improper suspension of HC because Boumedienne would not have been entitled to Habeas Corpus under the common law as it existed in 1789.

Since there has been ample discussion of the confusing and, in my opinion, incorrect, majority opinion that ignores Supreme Court precedent and convolutes centuries old English decisions I am not going to comment on it further. However I do want to comment on what the decision does not address, and point out why these omissions make this area of the law more confusing than it need be. I would also point out that these omissions can also be found in most Supreme Court decisions on this topic.

The dissent in Boumedienne, which is also guilty on this score, highlights the problem. Judge Roberts, in her dissent starts out well by saying
As for the MCA, I concur in the court’s conclusion that, notwithstanding the requirements that Congress speak clearly when it intends its action to apply retroactively, see Landgraf v. USI Film Prods., 511 U.S. 244, 265-73 (1994), and when withdrawing habeas jurisdiction from the courts, see INS v. St. Cyr, 533 U.S. 289, 299 (2001); Ex parte Yerger, 75 U.S. (8 Wall.) 85, 102 (1869), Congress sought in the MCA to revoke all federal jurisdiction retroactively as to the habeas petitions of detainees held at Guantanamo Bay. See Op. at 9-12.


But then she begins to slip. Characterizing the detainees' complaint, she writes

The detainees do not here contend that the Constitution accords them a positive right to the writ but rather that the Suspension Clause restricts Congress’s power to eliminate a preexisting statutory right. To answer that question does not entail looking to the extent of the detainees’ ties to the United States but rather requires understanding the scope of the writ of habeas corpus at common law in 1789.


See what happened. We went from the detainees' claim that their Statutory Rights, which existed under 28 USC 2241 were violated into a discussion of whether they were entitled to Habeas Corpus under the common law as it existed prior to 1789. She does this sidestep even though she acknowledges that prior to the MCA they had statutory Habeas Corpus rights. She does so by saying

A review of the text and operation of the Suspension Clause shows that, by nature, it operates to constrain the powers of Congress. Prior to the enactment of the MCA, the Supreme Court acknowledged that the detainees held at Guantanamo had a statutory right to habeas corpus. Rasul, 542 U.S. at 483-84. The MCA purports to withdraw that right but does so in a manner that offends the constitutional constraint on suspension. The Suspension Clause limits the removal of habeas corpus, at least as the writ was understood at common law, to times of rebellion or invasion unless Congress provides an adequate alternative remedy. The writ would have reached the detainees at common law, and Congress has neither provided an adequate alternative remedy, through the Detainee Treatment Act of 2005, Pub. L. No. 109-148, Div. A, tit. X, 119 Stat. 2680, 2739(“DTA”),nor invoked the exception to the Clause by making the required findings to suspend the writ. The MCA is therefore void and does not deprive this court or the district courts of jurisdiction.


The question of whether a statutory Habeas Corpus right exists is wrapped up, in part, in the question of whether the evolved and expanded Habeas Corpus rights contained in the Federal statutes that have been enacted since the Judiciary Act of 1879 are now subject to the Constitutional limitations of the Suspension Clause, ie., they cannot be suspended except on occasion of invasion or rebellion. She avoids the issue by saying her 1789 analysis makes it unnecessary

Given my conclusion, see infra Part C.1, it is also unnecessary to resolve the question of whether the Suspension Clause protects the writ of habeas corpus as it has developed since 1789. Compare St. Cyr, 533 U.S. at 304-05,
and LaGuerre v. Reno, 164 F.3d 1035, 1038 (7th Cir. 1998), with Felker, 518 U.S. at 663-64, and Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 COLUM. L. REV. 961, 970 (1998). The court oddly chooses to ignore the issue by truncating its reference to St. Cyr, without comment, and omitting the qualifier “at the absolute minimum.” See Op. at 14.


And for the same reason she avoids discussing, let alone deciding, whether there is an affirmative Habeas Corpus right in the Constitution


It is unnecessary to resolve the question of whether the Constitution provides for an affirmative right to habeas corpus —
either through the Suspension Clause, the Fifth Amendment guarantee of due process, or the Sixth Amendment — or presumed the continued vitality of this “writ antecedent to statute,” Williams v. Kaiser, 323 U.S. 471, 484 n.2 (1945) (internal quotation marks omitted). Because the Supreme Court in Rasul held that the writ existed in 2004 and that there was, therefore, something to suspend, it is sufficient to assess whether the writ sought here existed 1789.


Because she didn't rule on whether Habeas Corpus has evolved beyond the Eighteenth Century or whether it is embodied as affirmative law in the Constitution, she summarizes her decision by saying


Therefore, because Congress in enacting the MCA has revoked the privilege of the writ of habeas corpus where it
would have issued under the common law in 1789, without providing an adequate alternative, the MCA is void unless Congress’s action fits within the exception in the Suspension Clause: Congress may suspend the writ “when in Cases of
Rebellion or Invasion the public Safety may require it.” U.S. CONST. art. I, § 9, cl. 2. However, Congress has not invoked
this power.


Don't get me wrong. I think she reached the right result and that her reasoning, for the most part, is sound. But I think that she and most other judges continue to ignore the elephants in the bedroom. And by doing so they involve themselves in increasingly convoluted discussions of Colonial era British law. Yes, I know there are reasons why this is done and especially in lower court cases But it is time for the Supreme Court to step up to the plate. The Bush Administration has forced their hand with the MCA and the Detainee Treatment Act before it.

And my little tip to the Court is - there is an Affirmative Habeas Corpus right in the Constitution and the Suspension clause also applies to the revocation of the evolved Habeas Corpus rights now contained in Federal Statutes.

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