Access to Habeas Corpus: A Human Rights Analysis of U.S. Practices in the War on Terrorism

• Author: Brian R. Farrell
• Position: Director of academic support at The University of Iowa College of Law
• Pages: 3-31

Access to Habeas Corpus: A Human Rights Analysis of

U.S. Practices in the War on Terrorism

Brian R. Farrell∗

I. INTRODUCTION ............................................................................................. 3

II. HISTORY AND SIGNIFICANCE OF HABEAS CORPUS ...................................... 5

III. HABEAS CORPUS PROVISIONS IN RELEVANT HUMAN RIGHTS LAW ........... 7

A. Article 9(4) of the International Covenant on Civil and Political

Rights ..................................................................................................... 7

B. Article XXV of the American Declaration of the Rights and

Duties of Man ........................................................................................ 9

IV. BASIC GUARANTEES AND SCOPE OF APPLICATION ................................... 10

A. Basic Guarantees ................................................................................ 11

B. Relationship to International Humanitarian Law ........................... 14

C. Derogability ......................................................................................... 20

D. Extraterritorial Application ............................................................... 22

V. ASSESSING AMERICAN COMPLIANCE ......................................................... 25

A. Availability of Review ......................................................................... 26

B. Procedural Issues ................................................................................ 28

VI. CONCLUSION ............................................................................................ 30

I. INTRODUCTION

The terrorist attacks of September 11, 2001 set in motion a far-reaching

response by the government of the United States. A week after the attacks,

Congress adopted a joint resolution authorizing the President to use military

force against individuals and groups he determined to have “planned,

authorized, committed, or aided” the attacks. 1 Subsequent military

operations in Afghanistan targeted the al Qaeda terrorist network, which had

perpetrated the attacks, and the Taliban government, which President Bush

∗ The author is the director of academic support at The University of Iowa College of Law, an

adjunct lecturer in law and international studies at the University of Iowa, and a co-founder and

director of the Innocence Project of Iowa. He received his J.D. from the University of Iowa in

1998 and an LL.M. in international human rights law from the Natio nal University of Ireland,

Galway, in 2002, where he is currently a Ph.D. candidate.

1 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).

4 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 20:3

classified as a sponsor of al Qaeda. 2 The United States and its allies

undertook law enforcement and intelligence actions elsewhere around the

world as part of a broadly framed “war on terror.” 3

These military, law enforcement, and intelligence efforts resulted in a

wide range of terrorism-related detentions. The United States detained

citizens and non-citizens, charging some with criminal offenses while

declining to charge others. Military and civilian authorities detained

individuals at various locations in and outside of the United States. The most

prominent example is the indefinite detention of individuals at Guantánamo

Bay Naval Base in Cuba and Bagram Airfield in Afghanistan. 4

Detainees in all of these circumstances have attempted legal challenges

to their deprivation of liberty. Usually the detainees petitioned for writs of

habeas corpus in the U.S. federal courts. Habeas corpus, an ancient writ

considered to be one of the most fundamental guarantees of personal liberty,

provides for the judicial determination of the legality of a person’s detention,

and for the person’s release if the detention is unlawful.5

Both the Bush and Obama Administrations actively resisted the

extension of habeas corpus relief to terrorism detainees. Experts suggested

that the initial decision to house detainees at Guantánamo Bay was to

support the legal theory that U.S. civilian courts lacked jurisdiction over the

detainees,6 a view that a subsequently revealed Department of Justice memo

confirmed.7 After the United States Supreme Court held in Rasul v. Bush

that habeas corpus was available to non-citizen Guantánamo Bay detainees,8

Congress passed legislation purportedly stripping federal courts of their

jurisdiction to make such rulings. 9 The Supreme Court found this provision

2 President George W. Bush, Address to Joint Sessi on of Congress (Sept. 20, 2001), available at

http://www.pbs.org/newshour/bb/military/terroristattack/bush_speech_9-20.html.

3 Id.

4 See Steve Vogel, Afghan Prisoners Going to Gray Area: Military Unsure What Follows Transfer

to U.S. Base in Cuba, WASH. POST, Jan. 9, 2002, at A1; Eric Schmitt, U.S. to Expand Detainee

Review in Afghan Prison, N.Y. TIMES, Sept. 12, 2009, at A1.

5 Because it examines the legal basis of a person’s detention, habeas corpus has evolved into a

post-conviction remedy in U.S. criminal cases, and prior to 2001, experts discussed it

predominantly in that context. This Article, however, is primarily concerned with the post-2001

availability of habeas corpus in the American system in situations where a person is detained

without criminal charge.

6 Vogel, supra note 4.

7 Memorandum from Patrick Philbin & John Yoo, Deputy Assistant Att’ys Gen., U.S. Dep’t of

Justice, on Possible Habeas Jurisdiction over Aliens Held in Guantánamo Bay, Cuba to William

Haynes II, Gen. Counsel, Dep’t of Defense, 1 (Dec. 28, 2001) [hereinafter Memo of Dec. 28, 2001],

available at http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/01.12.28.pdf.

8 Rasul v. Bush, 542 U.S. 466 (2004).

9 Military Commissions Act of 2006, Pub. L. 109-366, 120 Stat. 2600, 2608–09 (codified in

scattered sections of 10, 28 & 42 U.S.C.) [hereinafter MCA].