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 In 1868, Congress expanded the statute to cover state prisoners, but in 1868 repealed the power of appellate courts to review lower-court denials of the writ (in a successful effort to deprive the Supreme Court of the Civil War case Ex Parte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.
Rasul thus reinforced that although the Constitution sets a minimum "floor" of habeas protection that cannot be rescinded absent circumstances of (as the text puts it) "invasion" or "insurrection," Congress can by statute raise the level of coverage--as it did, according to the Court, for overseas alien prisoners.
For that reason, Justice Souter appeared to oversimplify at the 2005 oral arguments of Hamdan v. Rumsfeld, when he rebuked the solicitor general: "Now wait a minute. The writ is the writ. . . . There are not two writs of habeas corpus for some cases and for other cases." Eisentrager and Rasul counsel to the contrary--Section 2241 carried the writ where the Constitution did not.
WHICH BRINGS US to the MCA debate. Section 6 of the MCA amends 28 U.S.C. 2241 to rescind the availability of habeas relief to alien detainees held by the United States--either as enemy combatants or awaiting such determination. The amendment rolls back the protections extended to Guantanamo prisoners by the Court's reading of Section 2241 in Rasul, recalibrating the writ to the level of protection afforded in Eisentrager.
Why, then, do critics describe the MCA as an affront to the Constitution? Do they really mean that if Congress increases the coverage of the writ beyond its constitutional foundation, then subsequent revision back toward the constitutional floor is a "suspension" of the writ? Such a position would imply that the constitutional clause is a one-way ratchet: Congress can expand the coverage of the writ--even by accident--but it cannot restore the narrower coverage. Under this reading, Congress effectively amends the Constitution by redefining the "privilege" of the writ of habeas corpus whenever it expands the writ's coverage.
An alternative explanation would be that critics simply aren't aware of Rasul's bifurcation of the protections of habeas under the Constitution and Section 2241, and they read Rasul to be a statement of constitutional, not merely statutory law. That would be a disconcerting development. If Congress is to react effectively to Supreme Court decisions, its members must be able to discern which decisions are within their power to reverse (i.e., statutory ones) and which are not (i.e., constitutional ones).
No doubt, we should laud any congressman who takes the Constitution seriously in debating legislation. But if Leahy, Pelosi, Specter, and other critics wish to contribute to a productive discussion of this legal issue, then they must clarify what their precise criticism is: That habeas corpus is a one-way ratchet, constantly expanding the constitutional protections afforded overseas alien prisoners? Or that they don't care to observe the fundamental distinction drawn by the Court in Rasul?
Adam J. White is an attorney. His article on Justice Robert H. Jackson's draft opinions in The Steel Seizure Cases will appear in the Albany Law Review later this year.