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The Constitution, Writ or Wrong

The habeas corpus debate illustrates a dangerous trend in legal ignorance.

12:00 AM, Oct 5, 2006 • By ADAM J. WHITE
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THE FIVE-YEAR LEGAL DEBATE over the global war on terror has focused predominantly on first principles: What does our Constitution allow? What does it forbid? But in those five years, three of the Supreme Court's four decisions have rested on statutory, not constitutional, grounds. The recent debate over the Military Commissions Act suggests that many legislators and commentators can't tell the difference between the two.

Of the MCA's various controversial provisions, the most mischaracterized was its amendment of 28 U.S.C. 2241, limiting the right of detainees to petition the federal courts for the "writ of habeas corpus"--i.e., to challenge the legality of their detention. The Los Angeles Times, for instance, warned that, "[b]y preventing detainees from challenging their confinement in court, it sets up a potential constitutional conflict before the Supreme Court." Senator Patrick Leahy flatly announced that, "[t]his is wrong; it is unconstitutional; it is un-American."

Leahy was not alone. Nancy Pelosi declared that "[b]y seeking to strip federal courts of habeas corpus review, this bill is practically begging to be overturned by the courts." Arlen Specter warned, "it is fundamental that Congress not legislate contradiction to a constitutional interpretation of the Supreme Court," and introduced an amendment to strip the habeas provision from the MCA. All of which fails to acknowledge the relationship between the writ of habeas corpus, as protected by the Constitution, and the writ as extended by the amended statute.

THE WRIT HAS ROOTS centuries deep in English and American law. In another of the Guantanamo cases, Justices Scalia and Stevens placed the writ at the "very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive." The Constitution protects the writ in clear terms: "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."

But as early as the Judiciary Act of 1789, Congress was attempting to define the extent to which citizens could secure the writ. The 1789 Act limited it to prisoners in federal, not state, custody. In 1868, Congress expanded the statute to cover state prisoners, but in 1868 repealed the power of appellate courts to review lower-court denials of the writ (in a successful effort to deprive the Supreme Court of the Civil War case Ex Parte McCardle). Today, the writ is the subject of 28 U.S.C. 2241.

Throughout this 200-year history--the above-quoted protests notwithstanding--the Supreme Court never held that habeas relief was available to alien military prisoners such as those at Guantanamo Bay. Quite the contrary: In its 1950 Eisentrager case, the Supreme Court held that the Constitution and Section 2241 did not extend habeas relief to alien military personnel held overseas. And unless the Supreme Court were willing to say that Guantanamo is within the United States, Eisentrager, standing alone, would have precluded habeas relief to prisoners held there.

But in 2004's Rasul v. Bush, the Supreme Court complicated matters by holding that Eisentrager's reading of Section 2241 was no longer valid. In short, while the Court left undisturbed Eisentrager's holding that the Constitution did not extend habeas relief to Guantanamo prisoners, the Court held that Section 2241 did reach Gitmo.