Last Friday in a 5-4 decision with Justice Anthony Kennedy writing for the majority, the United States Supreme Court ruled that Sect. 7 of the Military Commissions Act of 2006(PDF) (hereinafter MCA) which denied the detainees held at the US military base at Guantanamo Bay Cuba access to the federal civilian courts to hear petitions of habeas corpus was unconstitutional and ordered that said detainees shall have the right to have their claims heard in the US District Court for the District of Columbia.

While this writer believes the majority acted poorly with a rationale based on flimsy historical and jurisprudential precedents, the practical outcome of this decision may be less than is commonly assumed on both sides of the ideological divide.

Let us begin our discussion with what the aforesaid Sect. 7 of the MCA actually says:

SEC. 7. HABEAS CORPUS MATTERS.

(a) IN GENERAL.—Section 2241 of title 28, United States Code, is amended by striking both the subsection (e) added by section S. 3930—37 1005(e)(1) of Public Law 109–148 (119 Stat. 2742) and the subsection
(e) added by added by section 1405(e)(1) of Public Law 109–163 (119 Stat. 3477) and inserting the following new subsection (e):

‘‘(e)(1) 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.

‘‘(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial,
or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant
or is awaiting such determination.’’

In striking down this section of the MCA, the Court takes us on a tour d’horizon of habeas corpus both at common law and in precedent from previous cases. The Great Writ as it is referred to in Anglo-Saxon jurisprudence literally means “you have the body” and is regarded as one of the founding principles of liberty from arbitrary and capricious exercises of the sovereign’s state power to imprison by placing the onus upon the gaoler to produce the prisoner so that the accused might have a chance to address the charges arrayed against him, to confront his accusers and offer up defenses against his imprisonment. In the Anglo-Saxon system of criminal procedure this usually takes the form of a preliminary hearing wherein the judge can either bind over the accused for trial or dismiss the charges peremptorily after the return of a true writ by the grand jury. Under Rule 5.1 of the Federal Rules of Criminal Procedure:

(c) Scheduling. The magistrate judge must hold the preliminary hearing within a reasonable time, but no later than 10 days after the initial appearance if the defendant is in custody and no later than 20 days if not in custody.

(d) Extending the Time. With the defendant’s consent and upon a showing of good cause — taking into account the public interest in the prompt disposition of criminal cases — a magistrate judge may extend the time limits in Rule 5.1(c) one or more times. If the defendant does not consent, the magistrate judge may extend the time limits only on a showing that extraordinary circumstances exist and justice requires the delay.

Now it is a common misperception by many that aliens hold no habeas corpus rights under US law. That is not true. The injunctions of the writ apply equally to anyone accused of a crime committed in the United States or held in a prison operated by the United States on US soil. Where questions arise is when one, the accused were detained on foreign soil and two, where the locus of that detention is outside the sovereign territory of the United States.

Leaving aside the cases cited from British history of British courts granting habeas protections to aliens held by British authorities in various outposts of the empire, the court in Boumediene rests most of its basis for finding for the defendants on one case, namely Johnson v. Eisentrager which ironically enough concerns an action as follows, and I quote,:

“. . .(of German nationals) convicted of violating laws of war, by engaging in, permitting or ordering continued military activity against the United States after surrender of Germany and before surrender of Japan, were repatriated to Germany to serve their sentences. Their petition for habeas corpus alleged that their trial, conviction, and imprisonment violated U.S. Const. arts. I and III, and U.S. Const. amend. V. The court of appeals reversed dismissal of the petition, holding that any person, including an enemy alien deprived of his liberty anywhere under any purported authority of the United States, was entitled to the writ if he could show that extension to his case of any constitutional rights or limitations would show his imprisonment illegal. The Court held that the Constitution did not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States. The Court further found that the petition failed to allege any fact showing lack of jurisdiction in the respondents to accuse, try and condemn petitioners or that respondents acted in excess of their lawful powers.”

In the case instant the majority cites Eisentrager as an inapt precedent for the “Suspension clause” (here meaning suspension of the writ of habeas corpus during time of war and rebellion) because the prisoners were being held in the Landsberg Prison in Germany in the US zone of occupation with the understanding that said zone would soon revert to a postwar German sovereignty. In Boumediene the court holds that while Cuba may be the de jure sovereign of Guantanamo Bay, the US is, in fact, the de facto sovereign both under the long-term lease under which the base operates and the fact that no challenges to the base’s status or physical security thereof are likely to be presented in the foreseeable future. To buttress this argument the majority relies on several cases related to the US occupation of the Philippine Islands for habeas denials based on the supposition and I quote (p.27):

. . .“it is, as it has always been, the purpose of the people of the United States to withdraw their sovereignty over the Philippine Islands and to recognize their independence as soon as a stable government can be established therein”). The Court thus was reluctant to risk the uncertainty and instability that could result from a rule that displaced altogether the existing legal systems in these newly acquired Territories.”

But moving into the heart of the majority’s decision what it essentially boils down to is one of timeliness but a timeliness without historical precedent because there has not been a similar threat to the security of the United States in its past in a struggle of ill-defined parameters that might last a generation or more. On page 39 of his majority opinion Kennedy writes:

“The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.”

Well, the military mission at Gitmo isn’t of concern here rather it is the larger military mission that is tantamount namely protecting the United States from terrorist attacks emanating both from foreign shores and possibly from foreign agents acting from within the United States. In granting detainees rights to confront their accusers and the evidence against them in federal civilian courts the government quite likely might have to disclose “source and method” intelligence findings that would pose considerable risks to the larger national security. We have firsthand evidence of this danger from the trial of the 1998 embassy bombers when it was revealed that al Qaeada communicated by using satellite telephones and that these communications were being intercepted by US and Western intelligence agencies. Following these revelations, bin Laden and cohorts stopped using them.

Kennedy then cuts to chase (p. 41-43) with this:

“It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history.”

. . .The gravity of the separation-of-powers issues raised bythese cases and the fact that these detainees have been denied meaningful access to a judicial forum for a period ofyears render these cases exceptional.”

Well, whose fault is that? Further, why should an arbitrary set of elapsed time be determinative? Is a war’s potential consequences any less momentous just because it may last longer and be less easily defined than previous conflicts? I hardly think so. In other words, in finding that these detainees must be granted access to habeas hearings in the federal courts, the majority simply made up an arbitrary determination of timeliness in granting them relief. In doing so they heedlessly ignored or chose not to emphasize the government’s obligation under the Constitution to provide for the common defense of its citizens. Furthermore, they seemed not to notice the rights of appeal from any final determination of a Military Tribunal for these detainees under the MCA to a federal civilian appellate court:

§ 950g. Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court

‘‘(a) EXCLUSIVE APPELLATE JURISDICTION.—(1)(A) Except as provided in subparagraph (B), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission (as approved by the convening authority) under this chapter.

‘‘(B) The Court of Appeals may not review the final judgment until all other appeals under this chapter have been waived or exhausted.

‘‘(2) A petition for review must be filed by the accused in the Court of Appeals not later than 20 days after the date on which—

‘‘(A) written notice of the final decision of the Court of Military Commission Review is served on the accused or on defense counsel; or

‘‘(B) the accused submits, in the form prescribed by section 950c of this title, a written notice waiving the right of the accused to review by the Court of Military Commission Review under section 950f of this title.

‘‘(b) STANDARD FOR REVIEW.—In a case reviewed by it under this section, the Court of Appeals may act only with respect to matters of law.

‘‘(c) SCOPE OF REVIEW.—The jurisdiction of the Court of Appeals on an appeal under subsection (a) shall be limited to the consideration of—

‘‘(1) whether the final decision was consistent with the standards and procedures specified in this chapter; and ‘‘(2) to the extent applicable, the Constitution and the laws of the United States.

‘‘(d) SUPREME COURT.—The Supreme Court may review by writ of certiorari the final judgment of the Court of Appeals pursuant to section 1257 of title 28.

No one knows what may come of these habeas hearings in the Federal District Court for the District of Columbia while Congress and the next president once again amends the Military Commissions Act of 2006 to satisfy this court. No prisoner may necessarily be released and the court in no way ruled on the constitutionality of military tribunals for enemy combatants which seems to be firmly established in Ex Parte Quirin. According to MSNBC, there are currently about 270 detainees being held at Gitmo and one of the problems associated with releasing some of them is the fact that some of their host countries refuse to accept them. The possibility remains, however, that with this court’s ill-considered decision some truly dangerous people might possibly be released and such release might, at the very least, result in the deaths of US and coalition forces in either Afghanistan or Iraq as has been the case with several detainees who were released only to be killed or recaptured on the battlefield including Abudullah Mehsud whose brother or kinsmen is probably behind the assassination of the late Benazir Bhutto.

I'm 53 and employed in the commercial real estate industry in Washington, DC. My academic training is in modern European history with an MA from the University of Virginia where I was a Governor's Fellow. I have written for the Richmond TImes-Dispatch, Continuity: A Journal of History and The American Spectator. I consider myself something of a European conservative as I'm not a huge fan of democracy, have no use for Bible thumpers of any stripe and abhor cultural and intellectual philistines.