Gonzaga Journal of International Law Volume 9, Issue 2
The Undetermined Fate Of The Guantanamo Bay Detainees' Habeus Corpus Petitions
Written by Tamara Huckert
Gonzaga University721 N. Cincinnati StSpokane, WA 99202Phone 800 986 9585
Cite as: Tamara Huckert, The Undetermined Fate of the Guantanamo Bay Detainees' Habeas Corpus Petitions, 9 Gonz. J. Int'l L. 234 (2006), available at http://www.gonzagajil.org/.
The Undetermined Fate of the Guantanamo Bay Detainees' Habeas Corpus Petitions
Tamara Huckert
I. Introduction
I. Introduction
Following the terrorist attacks of September 11, 2001, George W. Bush, President of the United States, declared a War on Terror. The United States invaded Afghanistan and sought out enemy forces responsible for the horrific acts. As part of the conflict, the United States military has captured and detained hundreds of alien prisoners, who are currently being held at the Guantanamo Bay Naval Base in Cuba.
It appears as though the president and the United States' legal counsel believed that by detaining the alien prisoners at Guantanamo Bay, the detainees would not have legal access to the United States federal courts. In June, 2004, the Supreme Court released its decision in Rasul v. Bush[1] and held that federal district courts have jurisdiction to hear petitions for habeas corpus filed by Guantanamo detainees. As a result of that decision, the United States District Court for the District of Columbia received an onslaught of habeas corpus petitions and has had to decide what substantive rights the detainees can pursue under their petitions. This article begins by discussing the power of a writ of habeas corpus and the judicial precedent of habeas corpus jurisdiction prior to 2004. Next, the aftermath of the September 11th attacks is considered with respect to the impacts it had on habeas corpus jurisprudence. Finally, the article concludes with an evaluation of the Rasul decision and an analysis of two subsequent District of Columbia district court decisions, Khalid v. Bush[2] and In re Guantanamo Detainee Cases.[3]
The decisions in Khalid and In re Guantanamo Detainee Cases are vastly different, even though they originated in the same court. In Khalid, the court held that detainees imprisoned at Guantanamo Bay did not present a viable legal theory upon which a petition for habeas corpus could be granted. Yet, in In re Guantanamo Detainee Cases, another District of Columbia district court judge found the Guantanamo detainees have a Fifth Amendment constitutional right to due process that the government is not satisfying, and the Taliban detainees are entitled to protections under the Third Geneva Convention. This raises the question of what fate the Guantanamo detainees face with regard to their habeas corpus petitions.
Ultimately, when this question is answered in future decisions, an appellate court or the Supreme Court will likely find that the Guantanamo detainees are entitled to Fifth Amendment constitutional protections because the United States Constitution is applicable to the Guantanamo Bay Naval Base. Additionally, future analyses will likely determine that the due process procedures currently in place for detained prisoners do not adequately comply with Fifth Amendment requirements, since these same requirements were found insufficient by the Supreme Court in a related decision. Finally, courts conducting further review will likely hold that Taliban detainees are covered by the Geneva Conventions and are entitled to prisoner of war status. These predictions are based on rationales gleaned from the Rasul decision and the thorough legal analysis set forth in In re Guantanamo Detainee Cases.
II. The Power of a Writ of Habeas Corpus
The statutory power to grant a writ of habeas corpus is found in 28 U.S.C. § 2241, which states in pertinent part:(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had. (b) The Supreme Court, any justice thereof, and any circuit judge may decline to entertain an application for a writ of habeas corpus and may transfer the application for hearing and determination to the district court having jurisdiction to entertain it.(c) The writ of habeas corpus shall not extend to a prisoner unless -(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or(4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or(5) It is necessary to bring him into court to testify or for trial[.][4]
The writ of habeas corpus has traditionally been referred to as "The Great Writ"[5] and is used to champion the rights of prisoners unlawfully detained.[6] The "grand purpose of the writ of habeas corpus is the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty."[7] The United States Constitution further guarantees that "[t]he 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."[8]
As the habeas corpus statute states, federal courts have jurisdiction over habeas corpus petitions and the petitions may be granted by district courts, circuit appellate courts, or the Supreme Court.[9] District court or circuit court judges only have jurisdiction over petitions made by individuals physically present in their territorial jurisdiction, or by individuals whose custodians are physically present in their territorial jurisdiction.[10] Therefore, the grant of a writ of habeas corpus or the availability of other American constitutional privileges is dependent on the alien's physical presence in a district or sovereign territory of the United States, or the custodian's presence in a district or sovereign territory of the United States.[11] Until recently, federal courts rarely granted petitions for writs of habeas corpus made by non-resident alien detainees.[12]
In order for the petition to be properly filed, the alien must file the petition in the "district court that has jurisdiction over his custodian" and name the "custodian as respondent," or the court receiving the petition does not have jurisdiction to entertain the petition.[13] Additionally, the appropriate respondent is the person in immediate control of the alien.[14] In most situations, it is the individual with daily supervision of the alien, since that is the only person who has the ability to physically produce the petitioner to the court.[15]
According to section 2241, one of the situations in which federal courts may grant writs of habeas corpus is when the individual is detained under circumstances that violate the "Constitution or laws or treaties of the United States."[16] In these circumstances, the custodian bears the burden of proof and must show that the petitioner is in lawful custody.[17]
III. Legal Status of Habeas Corpus Petitions by Non-Resident Aliens Prior to 2004
Prior to the 2004 Supreme Court decision in Rasul v. Bush, the controlling legal precedent for granting a habeas corpus petition to a non-resident alien was Johnson v. Eisentrager.[18] In Eisentrager, a group of twenty-seven German citizens were captured by the American military in China during World War II.[19] They were charged with violating the laws of war by gathering and providing information to the Japanese military with respect to the American armed forces.[20] The prisoners were tried before an American Military Commission in China, where twenty-one were convicted and six were acquitted.[21] The twenty-one prisoners who were convicted were repatriated to Germany to complete their sentences at Landsberg Prison.[22] Following their convictions, the German prisoners petitioned the district court in the District of Columbia for a writ of habeas corpus to review the lawfulness of their detention.[23]
The Supreme Court held that these prisoners' petitions for writs of habeas corpus must be denied, even though aliens residing in the United States or its sovereign territories were allowed to seek redress in the American courts.[24] The Court had previously allowed the privilege of litigation to resident aliens because their mere presence in the country amounted to implied constitutional protections.[25] Yet, the Court found the Eisentrager petitioners were "at no relevant time. . .within any territory over which the United States is sovereign, and the scene of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States."[26] The Court stated that if it were to find...
