Detainment power: the limits of the president's power to suspend habeas corpus during military conflicts.

Author:Howe, Zach


The September 11, 2001 terrorist attacks and resultant military involvement in the Middle East brought to light several important questions relating to the President's ability to detain individuals during military conflicts and to restrict habeas corpus review of their detention. (1) Beginning in 2004, the Supreme Court of the United States began to address these questions in Rasul v. Bush (2) and Hamdi v. Rumsfeld. (3) In 2008, the Court further grappled with these issues in Boumediene v. Bush. (4)

The vast scholarship since Boumediene has examined many questions, but several fundamental aspects of the doctrine have been under-attended. In examining the doctrine, this Note attempts to address two such oversights. First, most articles implicitly suggest that courts will either assign the three Boumediene factors bearing on the extension of habeas equal weight or weight them arbitrarily. This Note, in contrast, arranges the factors into a coherent hierarchy that more accurately reflects how courts consider them when deciding cases. Second, based on this conception of the Boumediene factors, this Note identifies particular scenarios where the applicability of habeas is still ambiguous. For example, it remains unclear whether habeas will extend to a detainee held in territory over which the United States is sovereign when the detainee is a civilian alien or a non-civilian (American or not) who was not afforded adequate process during his status determination. Finally, the Appendix offers a flowchart summarizing this approach and its conclusions.


    Before examining the President's ability to prevent courts from hearing habeas corpus petitions, it is necessary first to determine whether he has the power to detain individuals at all. Absent a military conflict, the answer is likely no, whereas when Congress specifically authorizes detention, the answer is certainly yes. In Hamdi, the Court provided a clear answer to the question of whether a more general military authorization from Congress constitutes sufficient justification for detention.

    In Hamdi, an American citizen was detained in Afghanistan for supposed involvement with a Taliban military unit. (5) Hamdi's father filed suit on his behalf, alleging, among other charges, that the Executive did not have authority to detain Hamdi. (6) According to Hamdi, Congress had not authorized the President to detain U.S. citizens when it passed the Authorization for Use of Military Force (AUMF) to allow the President to respond to the September 11, 2001 terrorist attacks. (7) The AUMF permits the President 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons." (8) The statutory language, however, did not specifically authorize the President to detain individuals. Nevertheless, the Court rejected Hamdi's argument, holding that "detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use." (9) Moreover, so long as the President believed the individual had aided terrorists, the Court held that the AUMF authorized the detention of both aliens and citizens. (10)

    But although the President's power to detain may be settled, his ability to prevent courts from hearing detainees' petitions for writs of habeas corpus following detainment stands on shakier ground. Courts' habeas jurisdiction was originally derived from two sources: the Constitution and federal statute. The Constitution asserts 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." (11) By recognizing the writ, the Constitution recognizes courts' jurisdiction to hear petitions for habeas. Under 28 U.S.C. [section] 2241, courts are also authorized "within their respective jurisdictions" to issue writs of habeas corpus for prisoners held "in custody in violation of the Constitution or laws or treaties of the United States." (12)

    In Rasul, the Court faced petitions for habeas brought on behalf of two Australians and twelve Kuwaitis who were captured abroad and held without charges amidst hostilities between the United States and the Taliban. (13) The government argued that federal courts did not have jurisdiction to hear petitions for habeas brought by foreign nationals held on foreign soil. (14) The Court found this argument unpersuasive. After distinguishing several of its previous rulings, the Court held that statutory habeas jurisdiction under 28 U.S.C. [section] 2241 was proper,15 although it did not address whether the Court had constitutional habeas jurisdiction.

    Central to the Court's ruling in Rasul was that it did not believe Guantanamo Bay constituted "foreign soil" beyond the jurisdictional reach of federal courts. To prove this conclusion, the Court looked to the lease agreement over the territory that the United States and Cuba signed following 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]" and "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." (16) In 1934, the parties signed a treaty providing that the lease would continue "[s]o long as the United States of America shall not abandon the ... naval station of Guantanamo." (17) Based on this continual exercise of "complete jurisdiction," the Court found that statutory habeas jurisdiction was approprited under 28 U.S.C. [section] 2241. (18) Moreover, because [section] 2241 made no mention of citizenship, the Court held that both citizens and foreign nationals were entitled to bring petitions for habeas before federal courts. (19) Overall, the Court's ruling amounted to a substantial restriction on the President's ability to prevent detainees from petitioning federal courts for statutory habeas corpus.

    But the holding was short-lived. In 2006, Congress passed the Military Commissions Act (MCA), which amended 28 U.S.C. [section] 2241 and provided that:

    No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. (20) By abolishing statutory habeas jurisdiction, the MCA effectively overruled Rasul.

    Three years later, in Boumediene, the Court was faced with petitions for habeas brought by foreign nationals who were captured abroad, designated enemy combatants, and detained at the U.S. naval station in Guantanamo Bay. (21) Because the MCA clearly stripped the Court of its statutory habeas jurisdiction, the Court sought to determine whether federal courts had constitutional habeas jurisdiction to hear the case in question. (22) If it did have such jurisdiction, then the MCA violated the Con- stitution by denying the writ to detainees. In making this determination, the Court took into account three important factors: "(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ." (23)

    In the petitioners' case, these factors militated in favor of extending habeas under the Constitution. First, although the petitioners were not American citizens, no clear evidence had been put forth suggesting that they were enemy combatants and they had not been afforded an adequate opportunity to challenge their classification as such before a military tribunal. (24) Second, the Court noted that, although the United States does not exercise de jure (legal) sovereignty over Guantanamo Bay, it nevertheless exercises de...

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