Bring it on: the Supreme Court opens the floodgates with Rasul v. Bush.

• Author: Schumann, Christopher M.

The issue of whether aliens detained outside United States sovereign territory may invoke habeas relief and challenge the basis of their detention seemed to be settled law with the decision of the United States Supreme Court in Johnson v. Eisentrager (1)--at least until the 28th of June 2004. The Eisentrager Court had answered the question in the negative, and in recognizing how a decision to the contrary would affect the prosecution of war noted as part of its justification for this decision the following:

To grant the writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States. (2) The decision of Rasul v. Bush has reversed 54 years of precedence, opening the federal court system to detainees currently being held at Guantanamo Bay, Cuba, and likely beyond. (3) The Court's decision in Rasul will allow access to federal district courts to all detainees held at Guantanamo Bay, giving them the right to petition for habeas corpus and challenge the basis for their detention. This will deprive the President of one of his most necessary wartime powers, the ability to effectively prosecute the War on Terror unimpeded by litigation from our enemies, and the consequences of that litigation.

1. JOHNSON V. EISENTRAGER: A BRIEF BACKGROUND

   In an effort to understand the logic behind the majority's opinion in Rasul, it is important to first understand the underpinnings of the Eisentrager case. Eisentrager involved twenty-one German nationals who had petitioned the District Court of the District of Columbia for writs of habeas corpus. (4) The Germans had been a part of the German military and were serving in China. They were all convicted of violating laws of war, by engaging in, permitting or ordering continued military activity against the United States after the unconditional surrender of Germany on May 8, 1945. (5) Their crimes included the collecting of intelligence concerning American forces and their movements and providing that information to the Japanese armed forces, which at that time had not yet surrendered to the United States. The Germans were tried and convicted by a Military Commission in China, with the express consent of the Chinese Government, and were subsequently repatriated to Germany to serve their sentences. (6)

   Their petition for habeas corpus alleged that the prisoners' trial, conviction, and imprisonment violated Articles I and III as well as the Fifth Amendment of the U.S. Constitution. The district court denied writ. The court of appeals reversed, holding that "any person, including an enemy alien, deprived of his liberty anywhere under any purported authority of the United States is entitled to the writ if he could show that extension to his case of any constitutional rights or limitations would show his imprisonment illegal[.]" (7)

   The court of appeals, in supporting its conclusion that the German prisoners had the right, found that although it could cite no statutory jurisdiction for such cases where an enemy alien is entitled to the writ, "courts must be held to possess it as part of the judicial power of the United States[, and] that where an individual is deprived of liberty by an official act occur[ing] outside the territorial jurisdiction of any District Court, the petition will lie in the District Court which has territorial jurisdiction over officials who have directive power over the immediate jailer." (8)

   The Supreme Court reversed and held that the Constitution did not "confer a right of personal security or immunity from military trial and punishment upon an alien enemy engaged in hostile service of a government at war with the United States." (9) The Court noted that they could discover no instances where a court in the United States or any other country that employs the writ had issued it on behalf of an alien enemy who had at no time been within the country's territorial jurisdiction. (l0) The Court specifically stated that "[n]othing in the text of the Constitution extends such a right, nor does anything in our statutes." (11) The Court pointed out that even the lower court recognized an absence of any statute or case that would support their position, but rather they relied on "fundamentals." (12) The Court noted that this was not the first time it had addressed a motion for leave to file petitions for habeas corpus involving enemy aliens detained overseas. (13)

   As part of its analysis of the issue of whether or not the right of habeas applied, the Court spent a considerable amount of time highlighting the differences between the legal rights afforded to citizens versus those afforded to aliens. The majority opinion noted that our law and the laws of most of the civilized world have long recognized distinctions between citizens and aliens. (14) The Court understood the importance to distinguish the rights and privileges inherent to citizenship, as compared to the rights afforded to various categories of aliens. After all, the Court noted, "©itizenship as a head of jurisdiction and a ground of protection was old when Paul invoked it in his appeal to Caesar." (15)

   The State has a duty to protect its citizens, especially those who have shown true faith and allegiance to the nation. "Because the Government's obligation of protection is correlative with the duty of loyal support inherent in the citizen's allegiance, Congress has directed the President to exert the full diplomatic and political power of the United States on behalf of any citizen, but of no other, in jeopardy abroad." (16) The Court aptly noted, "©itizenship is a high privilege." (17)

   The rights of aliens tend to increase with the increase in that alien's connection to the country. Presence in the country affords certain rights, and those rights are expanded as the alien moves closer to acquiring full citizenship. But the Eisentrager Court noted that "in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act." (18) Under qualified conditions, resident enemy aliens have been provided access to our courts, (19) but "the nonresident enemy alien, especially one who has remained in the service of the enemy, does not have even this qualified access to our courts, for he neither has comparable claims upon our institutions nor could his use of them fail to be helpful to the enemy." (20)

   And so, the Supreme Court of the United States concluded that while the privilege of litigation has been extended to aliens because their presence in the country implied protection, no such basis applied in this case. The prisoners at issue had at no relevant time been within any territory over which the Untied States held sovereignty, and all other aspects of their crimes, capture, trial and imprisonment, were well beyond the territorial jurisdiction of any United States court. (21)

   The Court also took pains to recognize the impact their decision would have on the capabilities of commanders to prosecute war and ensure wartime security, including the impact on the war effort should the requested relief be granted to the petitioners. (22) They appreciated the importance of preserving the President's power over enemy aliens, "undelayed and unhampered by litigation." (23) Furthermore, the Court noted that the plight of the enemy alien in the custody of the United States is "far more humane and endurable than the experience of our citizens in some enemy lands." (24) In the end, the Court in Eisentrager paid great deference to the Executive Branch and how it prosecutes war. Through a well developed examination of not only the law relating to habeas writs, but also the impact of a decision allowing aliens held overseas access to our courts during wartime, the Court determined that nothing in our statutes or our constitution afforded aliens held overseas during wartime access to the writ of habeas corpus. (25

2. RASUL V. BUSH: THE SUPREME COURT REVERSES ITSELF

   On September 11, 2001, terrorist enemies who had declared war on the United States at least twice in the previous 4 years ferociously attacked our nation. (26) Hijacked planes were used as missiles and flown into the World Trade Center in New York City as well as the Pentagon in Washington, D.C., killing approximately 3,000 [TRY pages 4-14 and 313-315--describes the airline flights and states the number murderd] innocent people. (27) A fourth plane was brought down in a field in Pennsylvania thanks to the heroic efforts of the passengers on board. In addition to the staggering loss of life, the attacks destroyed hundreds of millions of dollars of property and had a devastating long-term impact on the economy of the United States. (28)

   In response to these unprovoked attacks, Congress passed a joint resolution authorizing the President...