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THE EVOLUTION OF HABEAS CORPUS R IGHTS AFTER 9/11 FOR NON -C ITIZENSOUTSIDE THE TERRITORIAL BORDERS OF THE U NITED STATES
Anthony F. Anise
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Introduction
The United States Constitution is a document that provided sweeping rights and
privileges to U.S. citizens. Among them is the right of habeas corpus: The right to be brought
before a tribunal when accused of a crime. However, the Constitution does not specify any rights
to non-citizens.
International law changed that. For example, as a signatory of the Geneva Conventions,
the United States is bound by humanitarian laws and owes a duty to non-citizens. 1 Despite
treaties of international obligations, non-citizens were not given substantive constitutional rights,
especially outside the territorial borders of the United States. This was made clear in the case of
Johnson v. Eisentrager , where the Supreme Court held that the U.S. owes no habeas corpus
rights to non-citizens, accused of violating laws of war, detained by the American military on an
American military base on foreign soil. 2 After 9/11, Guantanamo Bay played a pivotal role in
changing that.
The military base at Guantanamo is on property leased from Cuba after its independence
from Spain. 3 Because the U.S. have some sweeping rights in the base, but not ultimate
sovereignty, 4 Guantanamo Bay gave the U.S. a flexibility to be shielded from legal recourse. A
prime example of this flexibility was found in the pre 9/11 case, Sale v. Haitian Centers Council,
1 See Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6U.S.T. 3316, 75 U.N.T.S. 135.2 See Johnson v. Eisentrager , 339 U.S. 763 (1950).3 See Agreement Between the United States and Cuba for the Lease of Lands for Coaling and
Naval Stations, U.S.-Cuba, Feb. 23, 1903, T.S. No. 418 [hereinafter 1903 Lease Agreement].4 While on the one hand the United States recognizes the continuance of the ultimatesovereignty of the Republic of Cuba over the above described areas of land and water, on theother hand the Republic of Cuba consents that during the period of the occupation by the Unitedstates of said areas under the terms of the agreement the United states shall exercise complete
jurisdiction and control over and within said areas.1903 Lease Agreement, art. III.
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Inc. 5 is a prime example of this flexibility. Because bringing Haitian refugees to the U.S. would
grant them particular rights, the U.S. put them on Guantanamo Bay and was shielded from legal
recourse. 6
After 9/11, law suits by detainees held on the base created a series of Supreme Court
precedents that changed the course of non-citizen constitutional rights. This paper analyzes these
cases and tracks the progression of habeas corpus rights of detainees on Guantanamo Bay. Then,
this paper analyzes how the Sale case would have come out differently if it were tried today for
the first time.
Early Days of Guantanamo
History
To understand how the United States' position on rights of non-citizens has evolved after
9/11, an understanding of the history Guantanamo Bay is in order. Guantanamo Bay has
undergone a number of legal redefinitions throughout its history. Such did not occur in a
vacuum, rather as the courts' reactions to the crucial, often controversial, roles that Guantanamo
Bay played in various pivotal and historical events. Each event in Guantanamo's history set up
the naval station for its next use. Throughout its history, the language of the lease agreement has
remained constant and in force. This agreement has survived over a hundred years and several
revolutions in Cuba. It is the foundation on which Guantanamo Bay's jurisprudence is built.
In 1897, the U.S. had enough. Cuba is fighting for its independence and, after years of
successfully, almost miraculously, fighting off the Spanish forces, the U.S. was finished standing
5 509 U.S. 155 (1993).6 See id.
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idly by, and it decides to join the Cubans in their fight for independence. 7 During this time, there
was a growing sentiment in the U.S. that Cuba should be anexed to the country. 8 Therefore,
Congress added a clause to the declaration of war in what became known as the Teller
Amendment. 9 The U.S. made the goal of American involvement clear: The purpose is Cuban
independence. 10 The U.S. is determined to "leave the government and control of the Island to its
people", and disclaims any "intention to exercise [permanent] sovereignty, jurisdiction, or
control" of Cuba. 11
U.S. marines, entering through Guantanamo Bay were pivotal in assuring Cuba's swift
victory. After Spain and the U.S. signed the treaty of Paris, the U.S. took temporary control of
the island to establish a government of the Island's own people. After several years, Congress
passed another amendment detailing the conditions for withdrawal from Cuba. 12 One of these
conditions was that a set of seven articles had to be placed in Cuba's constitution. 13 The fifth of
these articles sets out that Cuba was to lease or sell areas of Cuba to the United States for use as
naval and coaling stations. 14 The purpose of this lease or sale was to protect the independence of
Cuba and to grow the defense of the United States. 15 These articles were also added to a treaty
between the U.S. and Cuba in 1903 titled Relations with Cuba. 16
7 See RADM Robert D. Powers, Jr., USN, Caribbean Leased Bases Jurisdiction , 15 JAG J. 161(1961) [hereinafter Caribbean Leased Bases Jurisdiction].8 Id.9 30 stat. 738 (1898).10 See id. 11 Id. 12 See 31 Stat. 895 (1901).13 Id.14 Id. 15 Id.16 See Treaty Defining Relations with Cuba, U.S.-Cuba, July 2, 1903, T.S. No. 437.
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In the Lease agreement, the famously ambiguous language established Guantanamo
Bays sovereignty: Cuba was given "ultimate sovereignty" and the U.S. was given "complete
jurisdiction and control" of the base. 17 In 1934, the 1903 treaty was abrogated and replaced with
a new treaty. 18 In the latter, the two countries agreed on conditions for termination of the lease:
The lease will continue unless the U.S. abandons the base or the two countries agree to terminate
the lease. 19 This means that Cuba was given no opportunity to ever unilaterally terminate the
lease for any reason.
In 1959, after a revolution led by Fidel Castro, diplomatic relations between the U.S. and
Cuba ceased. The U.S. continues to honor the Guantanamo lease. Castro does not wish to
continue the lease, but has not taken military action or force to remove the United States from the
base.
Analysis
The Teller amendment emphasized the lack of the U.S.'s intent to have any permanent
sovereignty, jurisdiction, or control on Cuba. However, by 1903, that is essentially what
happened. Not only did the U.S. hold an indefinite lease, it expressly held "complete jurisdiction
and control" over the bay. In 1934, to solidify the permanency of the lease, the treaty stripped
Cuba of any implicit unilateral power to terminate the lease. In 1959, with the cessation of all
diplomatic relations between the U.S. and Cuba, one of the main purposes of the lease, the
protection of Cuba, was indemnified, yet the lease continued.
17 See 1903 Lease Agreement, art. III.18 See Treaty Defining Relations with Cuba, U.S.-Cuba, art. III, May 29, 1934, 48 Stat. 1683,T.S. No. 866.19 Id.
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This evolution of U.S. power and control over Guantanamo Bay cannot be understood in
this vacuum, free from other historical contexts. 20 After all, it was the U.S. who freed Cuba from
the Spanish, and as far as every other country was concerned, the treaty of Paris gave Cuba to the
U.S. as its own property. 21 All the U.S. had was its own word to keep, and for the most part, it
did keep it and returned the Island to its people. 22 Therefore, whether the usurpation of
Guantanamo into U.S. control was fair or not, is not a simple question. It is also not a question
presented here. However, the understanding of Guantanamo Bay's adoption into U.S. control is
essential in establishing a reference point from which all future litigation and legislation
stemmed and to which legislators and judges looked back to.
This was a Bay that the U.S had control over, in an unlimited lease (forced on Cuba), but
to which the U.S. has no claim of sovereignty. Furthermore, the sovereign power with ownership
of the property has no diplomatic relations with the state controlling it. This entirely unique
situation results in a number of legal issues represented in the following cases. Principle among
these issues is whether American complete jurisdiction and control necessitates the
continuance of constitutional rights to Guantanamo Bay, and if so, how much of those rights
apply, and to whom.
The Pre-9/11 Baseline
Sale
20 See Caribbean Leased Bases Jurisdiction.21 It is true that between Spain the United States,-indeed between the United States and allforeign nations,-Cuba, upon the cessation if hostilities with Spain, and after the treaty of Paris,was to be treated as if it were conquered territory. Pearcy v. Stranahan , 205 U.S. 257, 265(1907) .22 But, as between the United States and Cuba, that island is territory held in trust for theinhabitants of Cuba. Id.
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In order to view and understand how the habeas corpus rights of non-citizens evolved
post 9/11, an understanding of the case law before 9/11 is essential to establish a baseline to
which post 9/11 cases may be compared. A thorough representation of the state of Guantanamo
and non-citizen rights can be summed up in two cases. The first is Sale v. Hatian Centers
Council, Inc. 23
Facts: In 1981, Haiti and the United States made a repatriation agreement. 24 In it, the
United States agreed to repatriate Haitian citizens that are intercepted attempting to leave Haiti to
the United States. 25 Haiti agreed not to prosecute the repatriated citizens, and the U.S. agreed not
to return anyone with refugee status, without his consent.26
Both countries agreed to prosecute
illegal human traffickers. 27 In the following decade, about 25,000 refugees were intercepted by
the Coast Guard and interviewed on the Coast Guard cutters. 28 Economic migrants were screened
out and repatriated; political refugees were screened in and brought to the United States for
naturalization. 29 In 1986 a democratic revolution resulted in the first democratically elected
president of Haiti, Aristide in 1990. However, the peace was short-lived when, in 1991, a
military coup caused a mass migration from Haiti, in which over 34,000 Haitians were
interdicted by the Coast Guard in a mere 6-month period. 30 Because of the overwhelming
number of interdictees, the U.S. was unable to keep up with the interviews, and the Coast Guard
Cutters were saturated. 31 A temporary camp was set up on Guantanamo Bay to house the
23 509 U.S. 155 (1993).24 See id. at 160.25 See id. 26 See id. 27 See id. 28 See id. at 161.29 See id. at 160.30 See id. at 162-63.31 See id. at 163.
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overflow. 32 When Guantanamo Bay was filled beyond capacity, the U.S. was left with two
options: Either allow the Haitians into the U.S. for screening, or return them without any
screening. The U.S. chose the latter. 33
The Respondents, relying on domestic and international law argued that the U.S. is
forbidden from returning the interdictees without a proper interview to determine if they have
refugee status. 34 The court disagreed, arguing that these provisions only apply for those who
enter U.S. soil. 35 Because these interdictees were on Coast Guard Cutters and Guantanamo Bay,
they were without remedy.
Analysis: This case gives a clear cross-sectional window into pre 9/11 jurisprudence.
Specifically, the court relies on the sovereign limits of the United States to limit the countrys
duty owed to non-citizens outside of it borders. Guantanamo Bay was implicitly assumed to be
equivalent to the legal status of Coast Guard cutters on the high seas, outside of the United States
territory. There was not even a sentence of analysis or an express assumption of this legal fact.
Guantanamos position was understood in the case to be outside the U.S., and therefore not
subject to U.S. laws. 36 Concededly, each statute was explained to be only applicable within the
United States, and therefore, this case did not exclude all of U.S. laws from applying in
Guantanamo. However, absent express provisions that relate to Guantanamo or territory
controlled outside the U.S., the U.S. law does not apply.
Johnson v. Eisentrager
32 See id.33 See id. at 163-64.34 See id. at 166-68.35 See id. at 171-79.36 See id.
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Sale gave insight into the common attitude before 9/11, but this case was not decided on
Constitutional grounds. In an older case, Johnson v. Eisentrager , the court denied habeas corpus
rights to any alien enemy who was convicted of a law of war and was held outside of the United
States. 37 In that case, the prisoners were held by U.S. citizens on a military base in Germany. 38
These two cases alone are sufficient to paint a grim picture of habeas corpus rights for
non-citizens tagged as enemies and kept at Guantanamo Bay: U.S. law does not apply in
Guantanamo because it is outside of the U.S., as explained in Sale . Habeas corpus does not apply
for enemies at war, convicted of breaking laws of war, outside the U.S. as explained in
Eisentrager . Therefore, habeas corpus does apply in Guantanamo Bay for enemies convicted or
breaking laws of war.
The Post-9/11 Evolution of Non-Citizen Rights
Congressional Response to 9/11
Three days after the terrorist attacks of September 11, 2001, Congress passed the
Authorization of Use of Military Force Against Terrorists, (hereinafter AUMF). 39 In it, Congress
granted the President the authority to use all necessary and appropriate force against those
nations, organizations, or persons he determines planned, authorized, committed, or aided the
terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons,
in order to prevent any future acts of international terrorism against the United States by such
nations, organizations or persons. 40 Pursuant to the authorization, the military invaded
Afghanistan and battled against al Qaeda and the Taliban. 41 Hundreds of people were captured
37 See 339 U.S. 763 (1950).38 See id. at 76539 Authorization for Use of Military Force, S.J. Res. 23, 107th Congress (2001).40 Id.41 See Rasul v. Bush , 542 U.S. 466, 470 (2004).
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abroad during these hostilities were detained at Guantanamo Bay. 42 The detainees had little to no
process. Litigation ensued, and the Supreme court spoke in a series of cases that slowly shifted
the U.S. position on rights of non-citizens.
Rasul
Facts: The first decision came in 2004 in the case of Rasul v. Bush .43 Fourteen detainees
held at Guantanamo Bay contested their stay, seeking habeas corpus relief. 44 Two of the
petitioners were Australian citizens, the other twelve were citizens of Kuwait. 45 None of them
had U.S. citizenships. 46
The major issue in this case is whether the court had jurisdiction to hear the cases of non-
citizens held outside the United States. 47 The District Court answered the question in the
negative and dismissed the cases. 48 The court relied on Johnson v. Eisentrager stating that
aliens detained outside the sovereign territory of the United States [may not] invoke a petition
for a writ of habeas corpus. 49 This was affirmed by the Court of Appeals. 50
The U.S. Supreme Court was not as quickly dismissive. The Court explains the deep
roots of the writ of habeas corpus in common law. 51 Then it stated that the strongest case for the
applicability of the writ is in reviewing the legality of Executive Detention. 52 The question
before the court dwelt upon the distinction between control and sovereignty that was made by the
42 See id.43 542 U.S. 466 (2004).44 See id. at 470.45 See id.46 See id.47 See id. at 471.48 See id. at 472.49 Id. at 472-73 (quoting Rasul v. Bush , 215 F. Supp. 2d 55, 68 (D.C. Cir. 2002) (citing Johnsonv. Eisentrager , 339 U.S. 763, 784 (1950))).50 See Rasul v. Bush , 215 F. Supp. 2d 55 (D.C. Cir. 2002). 51 See 542 U.S. 466 at 473-75.52 Id. at 474 (quoting Swain v. Pressley , 430 U.S. 372, 380 (1977)).
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Guantanamo lease agreement. Namely, the issue was whether the habeas statute confers a right
to judicial review of the legality of executive detention of aliens in a territory over which the
United States exercises plenary and exclusive jurisdiction, but not ultimate sovereignty. 53
To answer the question, the court first put a great deal of effort to distinguish the case
from Eisentrager .54 Specifically, the court stated that the detainees in this case were not citizens
of a country at war with the United States. 55 Then it differentiated between constitutional and
statutory habeas corpus claims. 56 While Eisentrager was a constitutional claim, in this case the
claim was statutory. However, the decision did not rest merely on distinguishing Eisentrager .
The Court further held that in the writ of habeas corpus, the important jurisdictional inquiry is
whether the court has jurisdiction over the jailer, not the jailee. 57 The Court found that it did have
jurisdiction, and therefore reversed the Circuit Court. 58
Analysis: The way the U.S. Supreme court chose to reason its opinion is quite telling. The
court started the opinion on a path to give alien detainees at Guantanamo substantive habeas
corpus rights. However, it did not go so far. Instead, it imposed a duty on the military in their
capacity as jailors of aliens. The process turned into an entirely different case. If habeas rights
were substantively conferred on these aliens, especially a statutory rather than constitutional
right, it begs the question: What other rights do these detainees have? However, if the jailor is
responsible for protecting the habeas corpus rights under its detention, there is no such question
of unbridled broadness that the court would need to clean up in the future. The case gives no
direct rights to any alien, only by proxy through the jailor.
53 Id. at 475 (quoting 1903 Lease Agreement, art. III).54 See id. at 475-76.55 See id. 56 See id. 57 See id. at 481-82.58 See id. at 484-85.
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Before this case, the Sale and Eisentrager decisions would seem to give Guantanamo,
and any base or vessel in exclusive U.S. control, a quite similar status. The habeas corpus rights
afforded to non-citizens are practically non-existent. The court here seemed to try its best to stop
a clear constitutional violation, whether in letter or spirit, without disturbing the status quo.
Specifically for non-citizens, this case gave the bare essentials of rights by proxy, while
protecting justice.
Hamdi
On the same day as Rasul , the Court announced another habeas corpus case, Hamdi v.
Rumsfeld .59
The Petitioner is a United States citizen, born in Louisiana, who claims to have
travelled to Afghanistan to do relief work soon before 9/11. 60 After the invasion of Afghanistan,
he was trapped there and was captured by a coalition fighting the Taliban. 61 Then he was given
to the U.S. military. He was interrogated in Afghanistan, held briefly at Guantanamo Bay, then
transferred to naval bases in the United States because he was a U.S. citizen. 62 His father, on his
behalf, filed for a writ of habeas corpus. 63
The District court granted the motion, giving Hamdi access to a court-appointed
attorney. 64 However, the 4th Circuit reversed, holding that Hamdi was given sufficient process
when considering the governments security and protection interests. 65 On remand, the
government filled the Mobbs Declaration in which it explains its reasons for detaining Hamdi
59 542 U.S. 507 (2004).60 See id. at 510-11.61 See id. at 510.62 See id. 63 See id at 511.64 Id. at 512 .65 Id. (citation omitted).
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that differed substantially from Hamdis account. 66 The District court found it lacking, but the
Circuit Court reversed on other grounds holding inter alia that no factual inquiry or evidentiary
hearing allowing Hamdi to be heard or to rebut the Government's assertions was necessary or
proper. 67
The first question before the court was whether the Executive has the authority to detain
citizens who qualify as enemy combatants. 68 The court held that it does, saying the AUMF
was sufficient statutory authority for the Executive to detain U.S. citizens. 69 The next question
was whether citizens can be held as enemy combatants, given that the nature of the war on terror
is indefinite.70
The court qualified its affirmative response stating that although citizens may be
detained, it is only for the duration of the U.S. military operation against the Taliban. 71 The Court
also limited its holding to detainees for which there is sufficiently clear evidence to be
considered enemy combatants. 72 Here, the Court also suggested that, had Hamdi been held at
Guantanamo Bay or another foreign base, the constitutional issue and decision would not be the
same. 73 Next, the Court asked what process was due Hamdi as a citizen tagged as an enemy
combatant. 74 Here the Court held that due process would require two prongs: (1) notice by the
government of the claims and factual bases by the government, and (2) a fair opportunity to rebut
66 The Mobbs declaration was basically the Governments version of the story, which stated thatHamdi trained with the Taliban. See id. at 512-13.67 Id. at 513. 68 Id. at 516. 69 See id. at 518.70 Id. at 510.71 See id. at 521.72 Id. at 523.73 Id. at 524.74 Id.
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the governments assertions before a neutral decision-maker. 75 Petitioner did not receive those
protections. Therefore, Hamdi was due more process than he received.
Analysis: This case plays an important role in the analysis even though it is not a case of
a non-citizen because it shows the contrast for how the Supreme Court approached the decision
as opposed to Rasul . First, the court is clear in qualifying the issues with the fact that the
Petitioner is a citizen. If the Rasul opinion, delivered on the same day, is to be believed and
habeas Corpus is a requirement of all jailors in which the United States has jurisdiction, why
does the habeas claim take a completely different approach and analysis? If the jailor is the same
or similar, why does it matter that a detainee is or is not a citizen?
It may be argued that the jailor is not the same because Rasul was being held in
Guantanamo Bay, but Hamdi was held in the United States. However, in Hamdi, the court
expressly explained that it would have made no difference whether the jail was in the United
States, Guantanamo Bay, or a foreign base, so long as the jailor was still the U.S. military.
Despite this, the court gave special attention to the fact that Hamdi was a United States citizen.
Therefore, it would seem that the reason for differentiation is more nuanced. I would
argue that the reason the decision was qualified in Hamdi to relate only to U.S. citizens is the
same reason that Rasul would not recognize rights of non-citizens directly, but only through the
proxy of a jailor. The court was trying to avoid giving any substantive rights to non-citizens
outside of territorial borders, as was the case before 9/11. This reluctance is understandable, but
it would not last. In the following cases, the court began to broaden its scope for non-citizen
rights, specifically rights of habeas corpus.
Hamdan
75 See id. at 533.
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Facts: Hamdan v. Rumsfeld ,76 starts out no different than the previous two: Petitioner
was detained in the Afghanistan hostilities and held in Guantanamo as an enemy combatant. 77 In
this case, the Petitioner, Hamdan, was a non-citizen. 78 However, he was tried by a military
commission after the government charged him with conspiracy to commit ... offense triable by
military commission. 79 Then, Hamdan filed a motion for the writ of habeas corpus. 80 He
claimed that the military commission was not authorized by Congress or common law and that it
violated basic tenets of military and international law, including the principle that a defendant
must be permitted to see and hear the evidence against him. 81 The District Court granted the
habeas corpus petition, but the Circuit Court reversed. Then the Supreme Court granted
certiorari. 82
Before the Supreme court heard the case, Congress passed the Detainee Treatment Act
(hereinafter DTA), which provided that no court ... shall have jurisdiction to hear or consider ...
any application for ... habeas corpus filed by ... an alien detained ... at Guantanamo Bay. 83 The
DTA applies to any claim with a review pending at the DTAs effective date. 84 That was the case
for Hamdan. Thereafter, the government filed a motion to dismiss the claim because the DTA
has the immediate effect, upon enactment, of repealing federal jurisdiction. 85 Hamdan
responded with constitutional and statutory arguments. 86
76 548 U.S. 557 (2006).77 Id. at 568.78 See id. at 566.79 Id. 80 Id.81 Id. at 567.82 Id. 83 Id. at 572 (citing 119 Stat. 2739-40).84 See id.85 Id.86 See id. at 575-78.
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The court held that the DTA did not deprive the Supreme Court of jurisdiction because
statutory construction dictates that the presumption is for a lack of retroactive application. 87
Because the statute does not have clear congressional intent favoring [retroactive application],
it does not apply to this case. 88
Then the court decided the case on its merits. The decision closely matched the District
Court. First, the court held that holding the appeal until the completion of the military tribunal
was not appropriate. 89 Substantively, the Court found the military commissions in violation of
the UCMJ and the Geneva Conventions. 90
Analysis: This case began to inch closer toward giving non-citizens substantive
constitutional rights. First, the fact that the Court did not ditch the case on procedural grounds is
quite telling. The Court had ample opportunity to dodge the question and rule on a technicality.
However the opinion very neatly dispels of the procedural issues before deciding the substantive
ones. Of course, a simple response could be that the Court is merely applying the rule of law.
However, viewing the court more cynically, the opinion gives the impression that the Court was
eager to decide this on the merits. 91
Despite this eagerness, the courts decision rests on statutory and international law.
Although both are binding and powerful, the court does not make a constitutional argument for
the Due Process Clause or the Suspension Clause. Similar to Rasul , the Court is imposing a duty
on the jailor, the military, in its capacity as a military tribunal. However, in deciding the case on
87 Id. at 584.88 Id. at 576. 89 Id. at 585 90 See id. at 587.91 Recognizing, as we did over a half century ago, that trial by military commission is anextraordinary measure raising important questions about the balance of powers in our constitutional structure, we granted certiorari. Id. at 567 (citation omitted).
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international law grounds, specifically on humanitarian laws of the Geneva Conventions, the
Court has effectively acknowledged and given substantive habeas corpus rights to non-citizens
abroad, even though those rights are not based in constitutional laws.
Boumediene
Facts: Boumediene v. Bush ,92 is a follow-up to Hamdan . After Hamdan held that the
DTA does not apply to pending actions because it does not say so explicitly. Congress responded
with the Military Commissions Act (hereinafter MCA), which expanded the denial of federal
jurisdiction of habeas corpus petitions to include any other action against the United States ...
relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement.93
The case is a consolidation of petitioners who had habeas corpus claims pending at the
time the MCA was enacted. 94 The Court of Appeals ruled that the statute effectively strips
federal courts of jurisdiction to hear the habeas corpus claims and that the claims should
therefore be dismissed. 95
The Supreme Court agreed with the Circuit Courts reading of the statute. 96 However, in
enquiring into the validity of MCA, the long-awaited constitutional analysis into whether non-
citizen enemy combatants, detained at Guantanamo Bay, have a substantive constitutional right
of habeas corpus commenced. The court found that they did. 97
The writ of habeas corpus is found in the U.S. Constitution in the Suspension Clause:
The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of
92 553 U.S. 723 (2008).93 Id. at 724 (citation omitted).94 Id. at 735.95 Id. at 735-36.96 Id.97 Id. at 795.
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Rebellion or Invasion the public Safety may require it. 98 The question for the court is in two
parts: (1) does the designation as enemy combatants bar petitioners use of the writ, and (2) does
the location of the petitioners, at Guantanamo Bay, bar their use of the writ. 99
The Court goes through a thorough historical analysis of the history of the writ and of
what constitutes sovereignty. 100 Specifically, the court differentiates between sovereignty as a
matter of power and sovereignty as a matter of right. 101 De jure sovereignty belongs to Cuba but
de facto sovereignty is retained in the United States. 102 Then the court rejected the Governments
argument that de jure sovereignty is the touchstone of habeas corpus jurisdiction. 103
The court then uses the Eisentrager case to produce a test for determining the reach of the
Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the
process through which that status determination was made; (2) the nature of the sites where
apprehension and then detention took place; and (3) the practical obstacles inherent in resolving
the prisoner's entitlement to the writ. 104 The court applied these to the instant cases and found
that the situation in Eisentrager was very different from this case. 105
The court held that the suspension clause has full effect at Guantanamo Bay and may be
used by the detainees there, and that MCA is not an adequate statutory substitute. 106
Analysis: This case completed the evolution of non-citizen rights outside the territory of
the United States. It established several key points. First, even though the U.S. does not have de
98 U.S. Const. art. I, 9, cl. 2.99 Id. at 739.100 See id. at 739-55.101 Id. at 754-55.102 Id.103 Id. at 755.104 Id. at 766.105 See id. at 766-71.106 Id. at 771.
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jure sovereignty over Guantanamo Bay, it does have de facto sovereignty, which is sufficient for
the Suspension Clause to apply there. Second, the case established that detainees with enemy
combatant status can still use the privilege from the writ. Therefore, detainees held at
Guantanamo Bay have the privilege of habeas corpus as a matter of constitutional law.
Kiyembra
Facts: In Kiyembra v. Obama ,107 seventeen petitioners, who were once considered enemy
combatants, had been vindicated of the title. 108 They were seeking habeas corpus relief to be
released into the United States. 109 The District Court granted relief, but the D.C. Circuit reversed
holding that this was a question for the Executive branch.110
In doing so, the court stated that
Guantanamo was outside the territory of the United States, and a habeas corpus claim would be
treated differently than if the alien was inside the country. 111 Judge Rogers concurred saying that
in Boumediene , 128 S.Ct. at 2257, the Supreme Court rejected this territorial rationale as to
Guantanamo, holding that detainees who were brought there involuntarily were entitled under
the Constitution to seek habeas relief because [i]n every practical sense Guantanamo is not
abroad; it is within the constant jurisdiction [and plenary control] of the United States. 112 The
Court responded to this saying that Boumediene recognized the Supreme Court had never
[previously] extended any constitutional rights to aliens detained outside the United States, and
therefore Boumediene is limited to the Suspension Clause. 113
107 555 F.3d 1022 (D.C. Cir. 2009).108 Id. at 1024.109 Id. at 1023.110 See id.111 Id. at 1032.112 Id. at 1038 (quoting Boumediene at 769).113 Id. at 1032 (quoting Boumediene at 770).
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Analysis: It would seem that if Boumediene was willing to extend habeas corpus rights to
current enemy combatants detained in Guantanamo, then a habeas corpus decision for former
enemy combatants would not be a difficult case. However, in this case, the D.C. Circuit Court of
Appeals reversed the District Courts grant of the motion. This case is the first major case in the
post 9/11 habeas corpus series of cases to limit rather than expand rights of non-citizens.
However, in one sense, the habeas claim was not denied in this case as a right, it was
denied on the merits, and therefore, this case did not limit Boumediene . Instead, it applied it. In
Boumediene , the court was careful to say and emphasize that the decision does not address the
content of the law that governs petitioners' detention. That is a matter yet to be determined.114
In
this case, the decision hinged on the habeas corpus petition. The petition was denied because the
content of the law is a political question, unreviewable by the court so long as the detainees
remain outside the United States. However, habeas corpus was not denied as a matter of right.
Sale Revisited
This line of cases begs several important questions. If non-citizen enemy combatants are
entitled to the constitutional privilege of habeas corpus, what other constitutional protections are
they entitled to? For example, how would Sale have been a different case if it happened today?
In light of Boumediene , what protections could the United States exercise to protect it from
another mass migration from an oppressive regime such as the one in Sale?
First, the U.S. Supreme Court cases show a clear, new progression. There are two
approaches to understand this progression. Either the court is recognizing more rights of non-
citizens held outside of U.S. borders, or the Court is expanding the reach of the Constitution to
include functional equivalents of U.S. territory, such as the base in Guantanamo. In other words,
114 Boumediene at 798.
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is the expansion in the people with rights or the places with rights? This is not a simple question
to answer, and it was premise behind the debate in Kiembra about the meaning of the holding in
Boumediene . The concurrence argued that the territory distinctions dont matter, Boumediene
gave rights to the non-citizen detainees. The majority argued that the constitutional protections
were not extended to non-citizens, the Suspension Clause was simply extended to Guantanamo
Bay because Guantanamo is a functional equivalent of territory.
I would argue that the holding and spirit of Boumediene are more consistent with the
concurrence in Kiyembra , not the majority. However, the culmination of all the precedent cases
have also given Guantanamo Bay special rights, and the unique legal situation of Guantanamo
Bay gave the Court a process by which to give these non-citizens substantive rights. The
previous cases tried to avoid the question of Guantanamos status and relationship with the
Constitution. Boumediene attacked it head on, but only in the context of distinguishing this case
from Eisentrager . The holding gave the rights to the detainees, not to Guantanamo per se , though
the holding was limited to Guantanamo. This distinction will be important in answering the
question of how Sale would have been decided or reasoned differently.
Turning to the Sale decision itself, the case gives a clear baseline for the status of non-
citizen rights. In that case, it was not even considered as a question whether there Guantanamo
was considered a special territory, it was equivalent to the high seas.
If the case were tried for the first time today, it would be argued, reasoned, and decided
differently. In Rasul , location took a back seat, the U.S. control was more important: Habeas
corpus is heard by the court that has jurisdiction over the jailor. Although the Sale case was not a
habeas corpus case, it involved non-citizens being forced to repatriate by the Executive Branch, a
similar situation to detainees being held against their will in Rasul . Both of these would not be
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tolerated by citizens. The Rasul case would play an important role in the Sale case today because
it would give an extra step of analysis into whether the Executive has the duty to give rights to
anyone it controls, irrespective of citizenship.
Looking at Hamdi , the case cautioned that, had the detainee been held in Guantanamo or
elsewhere, the reasoning would have been different. Therefore, citizen or not, location matters.
This case would be used by the government in the hypothetical present-day Sale . Specifically,
Hamdi was both a citizen and in the United States, and the Court gave him great protections.
Therefore, the Coast Guard cutters and Guantanamo Bay are not entitled to such protections. The
counterargument would be that Hamdi did not say that interdictees dont have rights on
Guantanamo. Giving constitutional rights to U.S. citizens in the U.S. is an obvious response by
the Supreme Court; it does not affect the interdictees in Sale .
Hamdan counters with a control argument, like Rasul . In this case the court found that
the military commissions violated tenants of international law. Sale was also partially decided in
interpreting a treaty that imposed a duty on the country to provide for all people, not just non-
citizens, certain rights. Although the laws in Hamdan and Sale are different, the attitude of the
court is important. The rights given to non-citizens through international law would be an
important consideration in the rights of citizens in the Sale case.
Boumediene would only work to cement what Hamdan started. Boumediene gave
substantive constitutional rights to non-citizens in Guantanamo. This case would be helpful in
two ways: first, it would show that the rights of the interdictees in general can exist within
domestic law, both constitutional and statutory. Second, the case would show that Guantanamo
Bay is special. The laws and rights that trigger there are not the same as those of international
law. If the Sale case was to be tried for the first time today, I believe that the interdictees staying
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at Guantanamo would be entitled to a full interview before being returned to Haiti. Furthermore,
even those on Coast Guard cutters may be entitled to fair interviews because they are in the
exclusive control of the United States government.
So, what about Kiyembra ? It appears that the facts of that case would more closely
resemble a modern day Sale than any other precedent. However, there are several problems with
the case that makes it bad precedent. First, it is a Circuit Court case, so it is not binding on the
U.S. Supreme Court. Second, the majority severely misinterpreted Boumediene , as explained
above. Therefore, its reasoning is not likely to be accepted by the Court. However, Kiyembra is
important in that it gives a preview into how the sweeping decisions of Rasul to Boumediene can
enter other areas of the law, and how the courts may work to limit the reach of Boumediene .
Kiyembra is essentially an immigration case, though it deals with detainees. It opens the door to
the Court to either expand or limit the Boumediene non-citizen rights. I predict that the Court
will be compelled to do just that in the near future.
Conclusion
The laws and Constitution are designed to survive, and remain in force, in extraordinary
times. Liberty and security can be reconciled; and in our system they are reconciled within the
framework of the law. The Framers decided that habeas corpus, a right of first importance, must
be a part of that framework, a part of that law. 115 This language from Boumediene is a great way
to conclude. The extreme situation of the war on terror has led to the legal creativity of the
Executive branch. This compelled the Courts response in a series of cases that define sweeping
rights for non-citizens. It took a place of legal ambiguity, like Guantanamo Bay, to define these
115 Boumediene at 798.
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new rights. Now that they exist in the habeas corpus context, it remains to be seen how far courts
are willing to stretch these rights.