The Constitutional Issue of Habeas Corpus Rights for Guantanamo Bay Detainees

By now, you've probably heard the spin from both sides. "We're going to free all the terrorists!" shout conservatives. "We're going to shut down military tribunals!" shout liberals. By now you've probably also guessed that the spin is dead wrong, on both sides. Lost in the discussion of the Supreme Court's ruling in Boumediene v. Bush, which ruled that those detained at Guantanamo Bay have the right to petition for writ of habeas corpus, is the fact that most people actually don't know what "petitioning for the writ of habeas corpus" actually means.

As usual, both sides have made this sound like an obvious issue. "The writ's in the Constitution," the liberals argue, "it's got to apply to everyone." "Our Constitution protects the rights of Americans in America," respond conservatives, "these people aren't Americans, weren't captured in America, and aren't being held in America, so they don't qualify for Constitutional protections. Case closed." And as usual, the issue is nowhere near as simple as both sides make it seem.

In today's entry for my series, I will start by discussing what, exactly, the "writ of habeas corpus" is, move on to a discussion of what exactly the Supreme Court's ruling in Boumediene was, what the real-world impact of that ruling will likely be, and then do my usual analysis of the Constitutional question itself from the four Constitutional perspectives. Three of those analyses, Textualism, Original Intentionalism, and Functionalism will actually be quite short because, as you will see, they actually all rely on Historical Contextualism. My hope, as always, is that you will come out of this article understanding what the writ is, and why there are two sound, logical arguments on how the writ should or should not be applied to the extraordinary case of terrorism.

What is the Writ of Habeas Corpus?

Article I, Section 9, Clause 2 of the Constitution states "The 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." That is all that is mentioned about the writ in the Constitution. It was actually such a fundamental part of jurisprudence that even at the time of the writing of the Constitution, it was deemed necessary to include it in the Constitution. Note, for example, that with the early Constitution, when the founders refused to include a Bill of Rights, they still made sure this rule was a part of the Constitution.

But what is the writ of habeas corpus? Well, basically, it is a court hearing. At this hearing, the government or entity detaining you has to show, usually be a preponderance of evidence (in other words, more likely than not), that they have sufficient cause to believe you should be held. In practical application, since we generally don't just detain people, the writ of habeas corpus is usually a last ditch effort of desperation by those convicted of crimes and either sentenced to death or life in prison. Because the writ is a Constitutional right, it is heard by the federal courts. As a result, when a prisoner in state court files for a habeas corpus hearing, the idea is just to give that prisoner the opportunity to be heard by a judge who has not yet heard them.

The reason habeas petitions are last ditch efforts is because they rarely ever win. First the prisoner must file the petition for the writ. In order for the court to even agree to hear their case, the prisoner must show probable cause to believe that they may not be being held properly. If the court feels the petition hasn't shown this, the petition is dismissed, and there is no habeas hearing at all. If the judge feels the petition does show such probable cause, the hearing goes forward. Remember, though, that a jury has found, beyond a reasonable doubt, that these criminals committed the crime. The odds that this could happen, but then the government be unable to show that they more likely than not have a legitimate reason to keep the prisoner in jail is very low. So, habeas petitions almost always ultimately fail.

So, if habeas petitions almost always fail, why bother having it in the Constitution? Well, at the time of the founding, we did not have the extensive judicial system we have today. Since the Bill of Rights did not apply to the states, there was no guarantee of a fair trial at the state level. Additionally, far too recent on the founders' minds were unfair, arbitrary detentions made by the King in England. A federal habeas hearing would catch those kinds of arrests, and shut them down. As a result, habeas corpus was not so much an individual right as another way for the judiciary to check the power of the executive and legislative branches, as well as the states.

Why is the habeas petition still important today? Well, mainly for those one or two cases a year where there was some serious problem with a case. Perhaps a convict has exhausted all his appeals, and then someone else turns out to be guilty. Absent a pardon by the Governor, or whatever party gives pardons in this convict's state, a habeas petition is actually the only way such a convict can be freed. Maybe something turns out to be fundamentally flawed with the evidence, but the convict's attorney didn't object to it at the trial level, so it was ineligible for appeal review. Basically, the habeas petition is still a valuable check against mistakes and abuses by law enforcement across the nation.

Boumediene v. Bush: What Did it Say? What Did it Mean?

Shortly after 9/11, President Bush signed an executive order determining that certain terrorist suspects would be subject to military tribunals, instead of civil trials. The idea for this is that military tribunals can be kept in secret, so the prosecution can present top secret evidence without compromising methods and sources, and military tribunals also have looser rules of evidence (evidence obtained through coercion, for example, is allowed in military tribunals). Due to a series of court battles, this executive order has now been codified by Congress.

Additionally, President Bush did not want terrorists anywhere that they could escape and harm Americans. As a result, he had the Navy set up a detention facility in Guantanamo Bay, Cuba. Guantanamo Bay is a Naval Base that the U.S. leases as a provision of the treaty which ended the Spanish-American War. The U.S. has leased the base since 1903, and while it is under complete American military and civilian control, it is still considered sovereign Cuban territory. President Bush chose Guantanamo Bay because Americans can keep complete control of their detainees, while not being under the jurisdiction of any American court outside of the military, and not keeping Americans exposed to terrorist threats.

The fact that the detainees, who are non-Americans, captured on foreign battlefields, are being held somewhere that is not American territory also lends credence to the idea that they are not subject to the protections of the Constitution. This meant, the Bush administration argued, that these detainees did not have the right to habeas corpus.

When the Supreme Court, however, made Bush acquire Congressional approval for his tribunals, many in Congress were squeamish at the notion of holding people for a prolonged period without any court hearing. There were concerns that this hurt our image abroad, as well as the fact that many felt this was just wrong. As a result, Congress hoped to create a habeas corpus equivalent that would still be held in the privacy of military court. So, Congress created the Combatant Status Review Tribunals. At these tribunals, held in military court, the detainee could argue that the government had insufficient evidence that they were tied to terrorist groups. Many on the left, however, still contended that this was not enough, as there is no way to have oversight of these tribunals, which are really extensions of the executive branch. Many were uncomfortable with the lack of judicial oversight.

Boumediene v. Bush came before the Supreme Court over these issues. The government argued that habeas corpus should not apply to non-citizens, that if it does, habeas corpus should not apply to non-citizens held by the military outside of American territory, and if it does, an exception should be made for public safety. The detainees, backed up by supporting briefs from several civil liberties group, as well as conservative libertarians, argued that habeas corpus was not an individual right, but rather a check on the executive branch, and so it applies to citizens and non-citizens alike. Additionally, they argued, America has full control of Guantanamo Bay, which is more than enough sovereignty for habeas to apply. Finally, they argued, there has not been a rebellion or invasion, so the so-called Suspension Clause of the habeas right has not been activated.

Ultimately, the Supreme Court agreed with the detainees, and said they have a right to petition for habeas corpus. What does this mean? It means that detainees at Guantanamo Bay can file the petition to have their case heard, and if accepted, can have their argument heard in federal court. What does this not mean? That slews of terrorists will be freed. The court ruling means detainees can file a petition. It is not guaranteed that their petition will be heard, and most likely won't. It also means that if they go to hearing, it is very unlikely they will be freed. Just by being captured on foreign soil, the government is likely going to be able to meet its more likely than not standard for nearly every detainee, even without using confidential information for evidence. It does mean, however, that in a very small number of cases, the government will likely have to choose between freeing a detainee or presenting confidential evidence.

The Constitutional Issue

So, the issues the Court faced were several. First, they had to address whether or not non-citizens get the Constitutional right of habeas corpus. If so, the Court needed to decide if the writ of habeas corpus itself applies to non-citizens captured abroad and held in an area not under American jurisdiction. Finally, if so, the Court needed to address of the Suspension Clause of habeas corpus has been activated.

Textualism, Original Intentionalism, and Functionalism

Since all three of these analyses point to Historical Contextualism for this issue, I will do an extremely brief coverage of Textualism, Original Intentionalism, and Functionalism on this issue.

Textualism: Reading the right itself makes clear that Textualists actually do have to step outside the Constitution and look at history here. Why? Because if you read the line, the writ of habeas corpus is clearly not written as a right being granted by the Constitution, but a privilege being upheld by the Constitution. As a result, a true Textualist would argue that the writ applies in whatever way the writ of habeas corpus applied at the time the Constitution was written. This requires a look at Historical Context.

Original Intentionalism: Much like Textualism, since the line in the Constitution is clearly meant by the founders as a continuation of an already existing right, Original Intentionalists also will look at habeas corpus as it applied at the time of the Constitution.

Functionalism: Functionalists also recognize that habeas corpus is not a right granted by the Constitution, but rather a privilege continued by the Constitution. The difference, however, is that Functionalists believe we must also look at the history of how habeas corpus has been applied throughout American history, and how the founders likely would have seen it in today's situation. All the same, however, this requires historical analysis.

Historical Context

It would make everything much easier if we could just tell exactly how a situation like we have today would have applied at the time of the Constitution. Unfortunately, however, we are actually in a situation never before faced by a country with a writ of habeas corpus. We are in a war, where we capture foreign citizens on foreign soil who are not prisoners of war (the debate over whether or not those we capture should be seen as prisoners of war is not a Constitutional one, so I will not address it in my series, but if you Google "prisoner of war" and "war on terrorism," you will find a very extensive debate on the issue). Additionally, those we capture are taken to an area that we completely control, but do not own. This is unprecedented in the world in which habeas corpus existed at the time of the Constitution.

The writ of habeas corpus at the time of the Constitution was, essentially, the writ as it was supposed to exist in England. So, our historical analysis starts there. Habeas corpus started in the Magna Carta. The purpose of the writ was to check the power of the King. Many nobles of the type who forced King John to sign the Magna Carta were being imprisoned without cause. The writ of habeas corpus, then, would force the King to defend his decisions in court. This was a major step towards a check on executive power.

Throughout English history, the writ was often suspended, as there was no guarantee that it would be kept in place. However, often the writ would return, stronger than before. By the time of the founders, the writ was seen as a very important check on governmental power. In the English Empire, the writ applied to non-citizens who were detained in England proper. It also applied on all English territories directly under the English crown (Ireland, for example). However, areas owned by England, but where the monarch of England was not sovereign (such as Scotland, where the King of England was sovereign but only in his capacity as King of Scotland, and where a separate system of laws and jurisdictions existed) the writ did not apply.

At the signing of the Constitution, this is how the writ existed, and this is where the analysis ends for Textualists and Original Intentionalists. However, for Historical Contextualists and Functionalists must look into a little bit of American history with the writ. Just as in England, the writ has always been taken to apply to non-citizens. It has only been formally suspended once, during the Civil War (a "case of rebellion").

The only times the writ has been denied to individuals outside of the Civil War in American history is in the cases of Prisoners of War and in the case of the German Saboteurs during World War II. For Prisoners of War, the writ is denied for two reasons. First, everyone knows that capture on the battlefield will be sufficient evidence that we have a legitimate reason to hold a POW. Second, and more importantly, because we are participants in the Geneva Convention, when we capture a POW, we guarantee that we will release them at the end of the war, making a habeas petition unnecessary. I would note that this is why President Bush does not want terrorists to be POWs, since he does not want to risk needing to release people who likely would not abide by a peace treaty.

The other instance outside the Civil War of writ suspension involved the German saboteurs. A little discussed event in World War II, the German saboteurs actually could have been disastrous to American morale during the war. On June 13, 1942, a German submarine landed in the dead of night at Amagansett, New York, landing four German agents. Three days later, a second submarine landed at Ponte Vedra Beach, Florida, landing four more agents. The eight agents got on trains across the country to get set up for their mission: the bombing of hydro-electric plants at Niagara Falls, the Aluminum Company of America's plant in Illinois, a critical railroad pass in Pennsylvania, locks on the Ohio River in Kentucky, a train station in New Jersey, and several other economic centers across the country. The effects of the test would have crippled American infrastructure, and greatly weakened the military.

Ultimately, two saboteurs backed out and turned themselves and the others in to the FBI. All eight were arrested, and FDR set up a special military tribunal to hear their case. The eight were charged with giving intelligence to the enemy, violating the law of war, spying, and conspiracy. Their attorneys pushed for a civil court trial, but the Supreme Court ruled that because the eight had invaded American territory, the Suspension Clause applied, and they had no right to the writ of habeas corpus. Ultimately all eight were convicted and sentenced to die. The two who had turned themselves in had their sentences reduced by FDR, and were freed in 1948 by Harry Truman and deported back to West Germany. The other six were all executed in the electric chair on August 8^th.

So, where does all of this get us? Well, for Textualists and Original Intentionalists, the answer is not clear. Certainly America is not sovereign at Guantanamo Bay, but there also is not a parallel set of laws there, as there were in the England-controlled nations where habeas corpus did not apply. Instead, American law still applies at Guantanamo Bay. So, does this mean that at the time of the founding, habeas corpus would have applied in a situation like this? That is for you to decide.

For Functionalists and Historical Contextualists, the evidence seems to point a little more towards detainees having habeas rights. After all, the rarity of denying those rights in American history is clear. They have been denied a) to people guaranteed to be freed later, b) to invaders, or c) to rebels. The latter two categories are clearly excluded from protection by the Constitutional clause itself.

However, America has never faced a situation like it does today, where it captured alleged criminals, not soldiers, on a foreign battlefield, and held them in a foreign country, in an area where the United States has complete military and civilian control. Does that change the way should look at things? Once again, that is for you to decide.