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, 260809 (codified in
scattered sections of 10, 28 & 42 U.S.C.) [hereinafter MCA].

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