Habeas Schmabeas?

The United States Supreme Court decided on June 12, 2008 that Guantánamo Bay detainees Al Odah and Boumediene have the affirmative right to the Great Writ of habeas corpus. The Court decided it was unconstitutional for President Bush to have the power to imprison people he considers enemy combatants indefinitely, without charging them with a crime, and to deny them any hope of meaningfully challenging the legality of their detention before a neutral court of law. Although President Bush originally imprisoned the detainees on his general constitutional authority as commander in chief, he was denying them habeas relief via presidential order and on the authority granted by Congress through the Military Commissions Act of 2006 (MCA). The MCA provides 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."

Previously in 2004’s Rasul v. Bush, the Court ruled that Executive imprisonment without trial "has been considered oppressive and lawless" since the signing of the Magna Carta in 1215. The Supreme Court in Rasul upheld the right of those detained at Guantánamo Bay to have their petitions for habeas corpus heard by United States courts under the federal habeas statute.

The 2008 Boumediene Court, quoting eminent British legal scholar Sir William Blackstone said, "To bereave a man [sic] of life…without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny…; but confinement of the person by secretly hurrying him to jail…is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." So, based on the opinions of the aforementioned legal scholars and Supreme Court holdings, the suspension of the Writ declared in the MCA was tyrannical and unconstitutional.

The United Nations’ Human Rights Committee, formed to monitor compliance with the International Covenant on Civil and Political Rights (ICCPR) treaty, recognizes that habeas may not be restricted even in times of emergency. The Committee noted that anyone deprived of their liberty shall be entitled to petition a court "in order that the court decide without delay on the lawfulness of his detention." Access to courts for judicial determination of rights and the right to an effective remedy are also guaranteed more generally under Article 14(1) of the ICCPR. Yet, the MCA prohibits detainees from petitioning or having any access to a neutral court. Further, far from being without delay, "all [detainees] have been confined at Guantánamo for almost six years, yet not one has ever had meaningful notice of the factual grounds of [their] detention or a fair opportunity to dispute those grounds before a neutral decision-maker." [And] "they have no prospect of getting that opportunity," according to arguments made before the Court in 2007. Based on these provisions, it is clear that the 2006 MCA violates the ICCPR treaty.

The MCA provision eliminating jurisdiction to hear habeas applications also violates the United Nations’ Universal Declaration of Human Rights (UDHR) treaty. The UDHR requires that defendants receive a public trial by "an independent and impartial tribunal." Since, under the MCA, the Executive brings charges, chooses the judges, and has wide discretion to determine trial procedures, it cannot be said that the tribunals created by the MCA are "independent and impartial." On the contrary, the Executive controls the judge and jury, in effect ruling on his own decision to detain prisoners. Clearly, the MCA violates the UDHR.

Moreover, any meaningful review of the legality of a prisoner’s detention is highly unlikely, to say the least, because the military tribunals set up to answer that question fail to meet the minimum requirements for "regularly constituted courts" as defined in the Geneva Conventions Common Article 3 (CA3). CA3 specifies that "each Party shall be bound to apply, as a minimum, a regularly constituted court affording all the judicial guarantees…recognized as indispensable by civilized peoples." Although CA3 did not define a "regularly constituted court," the International Committee of the Red Cross (ICRC) explained that a court is regularly constituted if it has been established and organized in accordance with the "laws and procedures" already in force in a country.

The Supreme Court determines the "laws and procedures" in the United States and, in 2006’s Hamdan v. Rumsfeld, construed the phrase "regularly constituted courts" to require the use of courts-martial. Presidentially-created military commissions might qualify as "regularly constituted courts," but only if such courts complied with Uniform Code of Military Justice Article 36’s uniformity requirements and "some practical need" explained any deviation from courts-martial practice. Since the Administration had not justified the need for any such deviation, the Supreme Court ruled that the Hamdan military tribunal violated Article 36’s mandates. Because the MCA tribunal is essentially the same tribunal as that created for Hamdan, the MCA tribunals violate the Geneva Conventions’ guarantee of "regularly constituted" courts under the Supreme Court’s ruling and are thus illegal.

The ICRC also noted that for a court to be "regularly constituted," it "must be able to perform its functions independently of any other branch of the government, especially the Executive." In contradistinction to this requirement, the MCA grants considerable latitude to the Secretary of Defense to convene a tribunal and promulgate detailed rules governing its execution. In fact, MCA tribunals are compromised by Executive command influence. The multiple roles of the Secretary of Defense as appointing authority, adjudicator, and self-evaluator strain any credulous definition of independence or impartiality. Thus, MCA tribunals are not independent and cannot be considered "regularly constituted courts."

Besides requiring a "regularly constituted" court, the United Nations War Crimes Commission, in the 1947 "Justice Trial," identified additional minimum standards for a lawful trial:

  • the right of the accused to know the charge against them at a reasonable time before the opening of the trial
  • the right of accused to the full aid of counsel of their own choice
  • the right of accused to give or introduce evidence
  • the right of accused to know the evidence against them
  • the right to a hearing adequate for a full investigation of the case

Not one detainee has ever had meaningful notice of the factual grounds of their detention or a fair opportunity to dispute those grounds before a neutral decision-maker. De facto restrictions on the defendant’s ability to employ counsel of choice, denial of the right to be present at their own hearing and of the right to hear all evidence against him or her are additional aspects of the MCA tribunals that fall below these minimum standards. Similarly, the practice of admitting into evidence confessions obtained through torture deprives a defendant of a fair trial. For these reasons, as well as those described above, the MCA tribunals cannot be fairly characterized as "regularly constituted" courts, rather they are "kangaroo" courts. So, even if they disregarded the MCA stricture suspending habeas and entertained jurisdiction, any decision regarding habeas relief by the tribunals would be wholly compromised by unlawful command influence and the abridgement of fundamental rights.

Proponents of suspending habeas might argue that post-9/11 circumstances permit Congress or the president to suspend habeas corpus. The Suspension Clause of the Constitution states that, "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." One dictionary defines an "invasion" as "an armed attack on a large scale for conquest or other hostile purposes." "Armed" could encompass an airplane loaded with jet fuel in the context of the 9/11 attack. "Large scale" could refer to the damage wrought or the size of the belligerent force. The damage wrought, approximately 3,000 people dead  and 9 buildings destroyed, could arguably be considered large scale. "Conquest" does not seem to have been the terrorists’ intent since 19 soldiers could hardly have expected to take over the U.S. government. However, killing people certainly constitutes a "hostile purpose." So the 9/11 attack could be characterized as an "invasion" based on the hostile purpose and arguably "large-scale" damage. Given that there has been an invasion, the Constitution permits the government to suspend the privilege of the Great Writ until the invasion ends or the public safety is restored.

On the other hand, "large scale" doesn’t seem like an accurate description of the 9/11 attack. Although about 3,000 people were killed, that number represents approximately .001 percent of the 300,000,000 people living in the U.S. And 9 buildings cannot be characterized as large scale when compared to the number of buildings in the U.S. Further, in absolute terms, although the loss of 3,000 people is horrific, such a loss shouldn’t be called "large scale." More than ten times that number die from car accidents every year in the U.S. and accidents are not typically characterized as "large-scale" killers. In addition, 19 terrorists can hardly be viewed as a "large scale" belligerent force. Nineteen people do not even constitute a platoon, much less a brigade or army. So, whether looking at the number of belligerents or the amount of damage wrought, the 9/11 attack was not "large scale," so it did not constitute an invasion.

Since the attack on 9/11 was not an invasion, Congress and the President have no legitimate authority under the Constitution to suspend the Writ of Habeas Corpus. Even if the 9/11 attack was an invasion, that event happened six years ago. There is no longer an invasion. So, suspending habeas is contrary to the temporary nature of any legal habeas suspension. When one considers that the suspension also violates the UDHR, the ICCPR, the Geneva Conventions, and shows no sign of being abated after six years, the resolution to the conflict in the Boumediene and Al Odah case should have been self evident to all nine justices. Instead, in a close five to four decision, the Supreme Court ruled that the suspension of the Great Writ of habeas corpus by the Legislative branch, through the MCA, is unconstitutional.


Clif Bennette is a law student. He has published technical as well as legal articles in small publications and in the Law Review Journal.