CHAPTER 14 GUANTANAMO BAY

• Jurisdiction: United States

Chapter 14 Guantanamo Bay

There is a history of tension between the writ of habeas corpus and presidential power. Three United States presidents either have suspended or substantially curtailed access to the writ of habeas corpus since the Constitution was ratified. The first, President Lincoln, suspended the writ during the Civil War in 1861. In the early 1870s, during Reconstruction, President Ulysses Grant suspended the writ in parts of South Carolina. In 2005 the Detainee Treatment Act was passed and signed into law by President George Bush. It suspended habeas corpus for non-citizens being held at Guantanamo Bay, Cuba.

To best understand the complicated relationship between the writ of habeas corpus and the detainees held at Guantanamo Bay, it perhaps is best to start at the beginning. One week after the attacks on September 11, 2001, Congress approved the Authorization for Use of Military Force, Pub. L. No. 197-40, 115 Stat. 224 (2001) (AUMF), which gave the President the power "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 . . . in order to prevent any future acts of international terrorism against the United States." Id. at § 2. In January of 2002, the first men to be incarcerated at Guantanamo Bay were brought there under the authority of the AUMF.

In 2002 the first petitions for habeas corpus relief by detainees at Guantanamo were filed. The district court dismissed the petitions for lack of jurisdiction, reasoning that Guantanamo was outside the sovereign territory of the United States. Rasul v. Bush, 215 F.Supp.2d 55 (D.D.C. 2002). The decision was affirmed on appeal, Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003), and the Supreme Court granted certiorari. The Court held in Rasul v. Bush, 542 U.S. 466 (2004), presented below, that 28 U.S.C. § 2241 did give the district courts power to entertain habeas petitions from non-citizen detainees at Guantanamo and remanded. Decided the same day as Rasul, the Court specifically held in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), that due process required that United States citizens being held as enemy combatants be given a meaningful opportunity to contest the factual bases of their detentions at Guantanamo. Nine days after the Court's decision in Hamdi, the Pentagon established combatant status review tribunals (CSRTs) to try to accommodate the Court's decision. These tribunals were meant to determine whether detainees held in Guantanamo are properly considered "enemy combatants" and to give them a limited amount of process.

While appeals were pending from the decision of Rasul on remand, Congress passed the Detainee Treatment Act, Pub. L. No. 109-148, 119 Stat, 2680 (2005) (DTA), which amended § 2241 to provide specifically that the courts do not have jurisdiction to entertain writs of habeas corpus from non-citizens being held at Guantanamo. It also gave exclusive power of review of CSRT decisions to the Court of Appeals for the District of Columbia. See Boumediene v. Bush, 128 S.Ct. 2229, 2241 (2008). The Court then held that the DTA's suspension of habeas corpus did not apply to cases that already were pending when the DTA was enacted. Hamdan v. Rumsfeld, 548 U.S. 557, 576-77 (2006). Additionally, the Court in Hamdan held that the DTA did not expressly authorize military commissions, that the military commissions' procedures violated the Uniform Code of Military Justice, and that the military commissions did not satisfy the Geneva Conventions.

In the same year as Hamdan was decided, Congress passed the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006) (MCA), which again amended § 2241 to strip habeas jurisdiction from federal courts for non-citizen, Guantanamo detainees. The MCA also specified, in response to Hamdan, that the suspension of habeas is to apply to all pending cases. In Boumediene v. Bush, infra, the Supreme Court reviewed the constitutionality of the MCA and held that non-citizens detained at Guantanamo Bay are entitled to the right of habeas corpus.

The recent history and unique relationship between Guantanamo Bay and the writ of habeas corpus accordingly prompts the question of whether Guantanamo Bay jurisprudence is itself an island, or whether it has important lessons for habeas corpus jurisprudence in general.

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

Justice STEVENS delivered the opinion of the Court.

[This case presents] the narrow but important question whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba.

I * * *

Petitioners in these cases are 2 Australian citizens and 12 Kuwaiti citizens who were captured abroad during hostilities between the United States and the Taliban. Since early 2002, the U.S. military has held them—along with, according to the Government's estimate, approximately 640 other non-Americans captured abroad—at the naval base at Guantanamo Bay. The United States occupies the base, which comprises 45 square miles of land and water along the southeast coast of Cuba, pursuant to a 1903 Lease Agreement executed with the newly independent Republic of Cuba in the aftermath of the Spanish-American War. Under the agreement, "the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the [leased areas]," while "the Republic of Cuba consents that during the period of the occupation by the United States . . . the United States shall exercise complete jurisdiction and control over and within said areas." In 1934, the parties entered into a treaty providing that, absent an agreement to modify or abrogate the lease, the lease would remain in effect "[s]o long as the United States of America shall not abandon the . . . naval station of Guantanamo."

In 2002, petitioners, through relatives acting as their next friends, filed various actions in the U.S. District Court for the District of Columbia challenging the legality of their detention at the base. All alleged that none of the petitioners has ever been a combatant against the United States or has ever engaged in any terrorist acts. They also alleged that none has been charged with any wrongdoing, permitted to consult with counsel, or provided access to the courts or any other tribunal.

The two Australians, Mamdouh Habib and David Hicks, each filed a petition for writ of habeas corpus, seeking release from custody, access to counsel, freedom from interrogations, and other relief. Fawzi Khalid Abdullah Fahad Al Odah and the 11 other Kuwaiti detainees filed a complaint seeking to be informed of the charges against them, to be allowed to meet with their families and with counsel, and to have access to the courts or some other impartial tribunal. They claimed that denial of these rights violates the Constitution, international law, and treaties of the United States. Invoking the court's jurisdiction under 28 U.S.C. §§1331 and 1350, among other statutory bases, they asserted causes of action under the Administrative Procedure Act, 5 U.S.C. §§ 555, 702, 706; the Alien Tort Statute, 28 U.S.C. § 1350; and the general federal habeas corpus statute, §§2241-2243.

Construing all three actions as petitions for writs of habeas corpus, the District Court dismissed them for want of jurisdiction. The court held, in reliance on our opinion in Johnson v. Eisentrager, 339 U.S. 763 (1950), that "aliens detained outside the sovereign territory of the United States [may not] invok[e] a petition for a writ of habeas corpus." The Court of Appeals affirmed. Reading Eisentrager to hold that "'the privilege of litigation' does not extend to aliens in military custody who have no presence in 'any territory over which the United States is sovereign,'" it held that the District Court lacked jurisdiction over petitioners' habeas actions, as well as their remaining federal statutory claims that do not sound in habeas. We granted certiorari and now reverse.

II

Congress has granted federal district courts, "within their respective jurisdictions," the authority to hear applications for habeas corpus by any person who claims to be held "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§ 2241(a), (c)(3). The statute traces its ancestry to the first grant of federal-court jurisdiction: Section 14 of the Judiciary Act of 1789 authorized federal courts to issue the writ of habeas corpus to prisoners who are "in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same." In 1867, Congress extended the protections of the writ to "all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States."

Habeas corpus is, however, "a writ antecedent to statute,... throwing its root deep into the genius of our common law." Williams v. Kaiser, 323 U.S. 471, 484, n.2 (1945) (internal quotation marks omitted). The writ appeared in English law several centuries ago, became "an integral part of our common-law heritage" by the time the Colonies achieved independence and received explicit recognition in the Constitution, which forbids suspension of "[t]he Privilege of the Writ of Habeas Corpus ... unless when in Cases of Rebellion or Invasion the public Safety may require it," Art. I, § 9, cl. 2.

As it has evolved over the past two centuries, the habeas statute clearly has expanded habeas corpus "beyond the limits that obtained during the 17th and 18th centuries." Swain v. Pressley, 430 U.S. 372, 380, n.13 (1977). But "[a]t its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in...