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December 13, 2006


I confess ignorance as to the constitutional status of habeas, but IIRC, the English courts had found back before 1776 that the King could not deny habeas to aliens or to persons held overseas.

In any event, the right to challenge detention as arbitrary seems like a fundamental right if ever there was one. Doubtless the SCOTUS will disagree.

In my Constitutional Politics class, we had to address this question, of whether Habeas Corpus could be suspended for non-citizens. My response, hopefully, will interest you.......aurenkaplan.blogspot.com

Auren, I don't agree with you about the relationship between 'people' and 'person' in the Constitution.

Hil, I'm not satisfied that Judge Robertson gave adequate weight to the Habeas Corpus Act of 1679. There are two operative questions, though, at this juncture: (a) are there five votes for reversal and (b) how long will it take. I think the answer to (a) is yes, and the answer to (b) is, unfortunately, 2008. I've been wrong before.

Of course, Congress can fix this: one consequence of the Republicans cutting and running from the appropriations process is that the new Congress will face a bunch of must-pass legislation, early on. Maybe someone can attach something . . .

CharleyCarp: that's why I'm so glad there are actual lawyers commenting here. I have some confidence in my ability to explain what the judge actually said, but none in my ability to know what relevant laws/cases/etc. the judge might have overlooked.

And Hil, I'd maybe use a different turn of phrase on Robertson's discussion of statutory habeas. I think the key point, for him, is that Rasul was based solely on the then-existing statute, and with the amendment of the statute, the rule of Rasul is no more.

In a sense, I guess, this is a consequence of not overruling Eisentrager, either in Rasul or Hamdan.

We'll see how the timing all works out, but it seems all the more likely that Al Odah will get out of the Circuit before this next round of Hamdan, and so the next time the Supreme Court considers Guantanamo prisoners, it will be considering people who have nothing to do with any battlefield, any war, or Osama bin Laden, and who are sitting in jail with no prospect of ever getting any due process. Rather than a guy who's been indicted, and is going to be tried. That is, I think an ordinary prisoner may well have a better Suspension case than a Commission defendant like Salim Hamdan.

It just occured to me that KSM went to college in the US. Does that mean he can bring a petition, while ordinary guys who've never had anything to do with anything can't?

There's a reason why people assumed that habeas didn't apply to everyone. Think back to WWII, when we had hundreds of thousands of German POWs held in the US. A significant number were US citizens (I've seen estimates in the thousands); a larger number might be able to assert that they were citizens. It would have been impossible to present evidence in court for each one of them; almost impossible to prove that an innocent American wasn't rounded up and slipped in as a POW. So naturally, the assumption was that POWs didn't have habeas rights.
Which makes sense, after all. They're not criminals, and there's no particular offense they're guilty of-- they're people, not necessarily soldiers, who surrendered to, or were captured by, the US armed forces. (Many classes of captured civilians can become POWs; see the Geneva Conventions for details).

There are significant practical problems with habeas hearings in a major war; if you have tens of thousands of detainees, it becomes very hard to prove anything about any of them in particular, since witnesses will be scattered around the world, or in combat, or dead. To the extent that the War on Terror is a major war -- and the detainee counts will keep rising -- I'm not sure whether doing habeas hearings for every detainee in US courts is the way to go.

The horrific stories coming out of the migra sweep of Swift plants are making me think about citizen and noncitizen habeas issues even more.

Even if it turns out that they weren't rounding up workers by skin color (thus taking away citizens along with undocumented workers), the total lack of accountability takes the breath away. A priest and nun in Iowa, trying to find information on where the mother of a nursing infant has been taken, can't even get in to the detention center to report the problem, much less get answers. What is going on?

Help! Sorry.

Completely OT: I have finally been banned on RedState -- but without (afaik) having engaged in any controversy. I mean: I only show up there to make factual corrections (e.g., about stem cell stuff) -- except, now that I think of it, when I tried to be helpful during the Domenech affair -- and try to respect their views of the site. I wonder if it was the set of posts on Thomas that did it -- it was definitely during the last few days.

I wish I knew what I did...

It's an odd opinion. It seems like it's clearly written, but he skips over some pretty key steps of the argument so quickly that I don't understand how he got there. (How, exactly, do we know Hamdan is an ENEMY alien? The CSRT? But he doesn't mention it. The hypothetical future commission trial? But that makes no sense. The facts that Hamdan has conceded? But they're not discussed).

The "voluntary ties" thing, as a basis for denying someone habeas, seems completely assinine to me, but I'm not familiar with the case he cites in support of it.

Caveat: I only skimmed it and am not thinking straight this week.

Ari, it depends on how a person comes into custody. How many of those German POWs were picked up in Portugal, say, out of uniform, with no indicia of belonging to the German Army other that the word of a bounty hunter?

One of my clients was arrested by Pakistani police in Pakistan. In an apartment. I don't think any of the 'witnesses are scattered, battlefields are confusing' points apply to him at all: if the police break into an apartment in the pre-dawn hours and make arrests, they can preserve evidence, have the prisoners arraigned, or whatever.

Off topic (but kind of along the same lines of abuse of gov't power) - this is kind of disturbing:

Federal prosecutors are trying to force the American Civil Liberties Union to turn over copies of a classified document it received from a source, using what legal experts called a new extension of the Bush administration’s efforts to protect national-security secrets.

And it's always wonderful when you can find law professors to say things like:

“Assuming it’s properly classified,” Professor Eastman said of the document, “I actually think the government is bending over backwards to accommodate the A.C.L.U. rather than pulling the trigger in prosecuting them.”

I didn't like the First Amendment anyway.

And Ari, there are a number of other ways in which comparisons to WWII break down. In that war, the opponent was a nation. Consequently, you could say that any citizen of Germany was an enemy alien. You could also say that the war could end -- with the surrender of the sovereign. Here, there's no enemy other than people actually involved. We're not at war with Yemen -- so Yemenis aren't enemy aliens as that term has ever been used in the law. There's also no way to end a war that's a metaphor: the war is going to be over when there are no more radicals posting threats on the Internet? When no one is upset about the encroachment of Western culture in the Muslim world? When no one thinks that the only way to fight a superpower is by terrorism?

It's a real problem engrafting norms and practices from real wars onto this metaphor. A guy accused of having been in the food service, for two weeks, at Tora Bora, picked up in an Afghan village on the say-so of bounty hunters, is held until the "war" is "over" -- not an enemy, not a combatant, not a war (as traditionally understood), never over.

And people think it's meaningful to talk about German soldiers, who surrendered, on battlefields, in uniform, keeping their rank in prison, waiting for their government to surrender?

Also the German soldiers were POWs, whereas the administration specifically claims these people aren't so that it doesn't have to give them the rights of POWs.


Congratulations! Wear it as a badge of honor. Also, "controversy" at Bizarro World includes things such as "factual corrections."


Well, it couldn't have been that, Thomas won't even link to hate sites, he would feel all dirty visiting them.

I didn't like the First Amendment anyway.

Out of curiosity, whose freedom of speech is being denied in this example?


Probably wasn't clear from the quoted text. ACLU came into possession of classified documents (emailed to them without their asking) and was apparently going to release them in some manner (not clear from the article), gov't has asked them for the documents and all copies in an attempt to prevent their publication (says ACLU). Would be "prior restraint" which has traditionally been pretty much a big no-no in terms of first amendment law (I believe this would be covered by the "Pentagon Papers" case decided by the Supreme Court in the 1970s).

Sounds like recovery of stolen property to me. Certainly the ACLU hasn't been ordered not to write or talk about the subject matter, just to return materials and information that isn't theirs.

Possibly. I'm not all that familiar with the law surrounding classified information. Furthermore, I'd guess that the government ought to be lots more interested in finding the source.

Hopefully we can skip the whole discussion of overclassification, etc; we've done that. All of the above questions presume appropriate (or even plausibly appropriate) classification.

I wish I knew what I did

you don't have a right to know. as a non RedState citizen, the privilege of posting can be taken away without explanation, and without you having a right to challenge it.

just be thankful you were allowed to post there at all.

return materials and information that isn't theirs.

in that case, couldn't every bit of info the govt didn't want released be considered 'stolen property' ?

CharleyCarp, if you have a moment or a link, the exact relevance of the 1679 Act would be interesting to everyone, I'm sure. (Not snark -- I mean, it really would.)

If it's a statute enacted by Parliament, how does that fit into the constitutional/statutory habeas dichotomy in the U.S.? I seem to recall that Parliament can't repeal its prior enactments; does that make the Act effectively part of the common law for U.S. purposes in 1789?


Excellent question. Going too far in this direction would tend toward a more closed government, which I think is a bad thing. Again, though, I'm thinking the government should be a great deal more interested in who leaked.


Well, if the ACLU can write or talk about the subject matter, why can't they keep a copy?


They do, according to the ACLU.

"do" s/b "know"

I think 'constitutional habeas' is nothing other than common law habeas. I don't think common law habeas is geographically bound. Although the 1679 act limits extra-territorial application to citizens or residents, this is washed away, in my view, by the Fifth Amendment's application to 'any person.' We don't even really have to get there, because of the application of the Act to overseas dependencies, regardless of prior usages: I think Gitmo is the US for all legal purposes (and if you doubt me, go there and light up a joint -- the punishment you will experience is not that of a landlord, or of the application of Cuban law).

More to the policy end of things, one of the main reasons for the 1679 act* was the crown's policy of intentionally placing prisoners beyond the reach of the writ, so that it would not have to justify its conduct in a court of law. This was tyranny then, and it's tyranny now: there is (imo) and should be no place on earth where the American Executive is free of the constraints of the legal document that created it.

But then I don't think that the Executive would be free to sell the Gitmo prisoners into slavery abroad either.

In sum, think Eisentrager was wrongly decided, but that it need not be overruled to find that Gitmo prisoners have common law habeas rights.

* As is evident in the full title of the legislation.

[T]here is ... and should be no place on earth where the American Executive is free of the constraints of the legal document that created it.

That, is a wonderful sentence.


Good question, and one that I'm certainly interested in hearing more opinion on. One that has nothing whatever to do with speech, though, unless you think there's a link between possession of stolen property and the first amendment.

Plausible to me. And I don't understand the fixation upon status quo 1789 that certain jurists seem to have. As the King tried new & devious ways around the Writ, it seems that Parliament and the courts had no trouble saying "no, habeas goes beyond that."

I suppose it's the difference, IIRC from philosophy of law, b/t a postivist concept of habeas and a natural-rights one? If habeas is a favor bestowed by the gov't or the Constitution, then the former makes sense; if it's a fundamental human right, then the latter.


The lesson seems to be, as soon as you get your paws on something classified, get it on the Internet ASAP. Good luck retrieving all the copies *then*, feds!

Isn't their a large difference between asking for return of stolen property and asking for "return" of illegally acquired information?

I can't support that, Anderson. The government has a right to classify information. That right means nothing without the power to control the information.

Where the limits of that power are, is, as I've said, a topic of discussion that holds some interest to me, given that I routinely am in contact with such stuff.

Lots of good habeas stuff, btw, at this site where I found the 1679 Act. I like this from Blackstone, quoted by Story:


Follow the link for some good American snark by Story.

The Constitution doesn't give habeas, it says that Congress can't take it away unless certain conditions -- not now present -- exist.

(I don't do philosophy, and so won't comment on what categories exist or mean).

Chief Justice Marshall addressed this, somewhat, in Ex Parte Bollman: would a court have the authority to issue the writ without the section of the Judiciary Act of 1789 that specifically authorized it. IIRC, he gave the wrong answer -- in dicta. He'd have decided Curtis-Wright the other way as well, I'd bet.

Slarti, I didn't recommend such lawlessness; I meant merely to observe that it will be the natural response to the feds' attempt to secure all "copies."

Italics begone?

Acknowledged, Anderson

Seems to me that Blackstone's "bereave a man of life" ought to be "publicly bereave a man of life", since when people are disappeared it's not known whether they've been put to death or not.

It's always a pleasure to read Justice Story. 'Pitiful evasions' indeed.

Balkin and Lederman have separate posts about the ACLU case.

It's always a pleasure to read Justice Story.

I was admiring his follow-up to Blackstone on arbitrary confinement:


Balkin and Lederman have separate posts about the ACLU case.

Thanks KC, pretty much what I thought.

Hilzoy, regarding your banning at Red State:


"I only show up there to make 'f'actual corrections."

"I wish I knew what I did...."

Must have been the 'f' word. They use the same servers as the White House.

"I only show up there to make factual corrections."

That would be "vandalism" at RedState. The facts have a well-known liberal bias, as our finest journalist has said.


Depends on how you get it on the Internet, though. A sufficiently quick response time by the Feds could be enough to shut it down -- and one can only imagine what cancelbots the NSA might have available to them -- as could threats of sufficiently serious legal action (viz. Scientology's assault on distribution of their "trade secrets").

After all, the internet is a series of tubes, it's not a dump truck...

The historical discussion of the scope of habeus corpus under common law prior to 1789 is amusing in that it dredges up that old discussion of "original intent" in construing the words of the Constitution. We should be making this basic legal decision regarding habeus based on the principles underlying the doctrine -- not some arcane historical analysis of vague intent. Original intent is great if someone actually thought about the issue at the time -- otherwise it ends up being somewhat nonsensical.

I seriously doubt that there is much historical precedence concerning the issue at hand -- the alleged power of the executive to detain non-citizens seized overseas and deny them all access to courts. The legal questions concerning terrorism suspects and habeus is somewhat sui generis. It is similar to the initial question of whether or not electronic wiretaps constituted a search -- there was literally nothing of historical parallel (except maybe eavesdropping, but not really), and thus no original intent to tell one how to judge that case. The courts developed the test of reasonable expectation of privacy to decide this type of question -- nothing concerning original intent supports that particular device for analyzing these questions regarding searches. Imagine deciding search and seizure issues in relation to wiretapping based on oddball historical analogies to eavesdropping cases, instead of pursuant to the underlying principle of a reasonable expectation of privacy.

The habeus law should be declared unconstitutional because everything we know about executive power tells us that it should not have this power in defiance of the right of habeus corpus. The judge in this case was simply being meek, in my opinion (not unusual for lower court judges, though, since most feel that they should not be the ones to forge new ground).

The point is not so much to affirm a particular right in particular individuals, but to deny the executive the power of arbitrary detention, except in narrowly defined exceptional circumstances. The war time cases should be recognized as a narrow exception, and narrowly drawn rules formulated to distinguish what constitutes a war time case. As others have pointed out above, the historical concept of prisoners seized in war does not really apply to the vast majority of the detaineees.

Frankly, for those who believe the law constitutional, they should answer this question. What then legally prevents the executive from executing Hamdan and others without trial, based simply on the executive's conclusion that they are the dangerous enemy? Since they exist in a legal limbo in which no law applies to them, then anything should be "legal." Why distinguish between indefinite detention and execution? The point is that denying access to courts is the same as denying all law for such people -- laws that cannot be enforced by access to courts simply cease to exist.

As a footnote, Congress could create an alternative court providing minimal due process to hear these cases -- the law would not require access to the existing federal courts. But denying all meaningful review as is the current situation -- no can do in my opinion. And that conclusion should be based on the underlying concept of why we have habeus corpus (to deny arbitrary power to the executive) -- not on whether or not there is some historical parallel before 1789 to our current dilemma.

TalkLeft has a criticism of the ruling that I found convincing.

As TL and others noted, Eisentrager is different in various respects. FWIW, I think Rasul/Hamdan sent a message that its limiting qualities should largely be deemed not good law, but aside from that, Hamdan simply is not in the same position as the people in the earlier case. Rasul suggests why.

As to the "the people" vs. "person" deal, see United States v. Verdugo-Urquidez, esp. Kennedy's controlling opinion, which Rasul also cited in a key footnote. Again, see Kennedy's opinion in Rasul, which quite honestly probably is the controlling one in the future.

I agree also that some points of the opinion by Judge Robertson was conclusionary. This tends to occur in district court rulings, though we can recall how people ridiculed the judge in the NSA case that allegedly did it.

I esp. was turned off by Robertson in effect rejecting the implications of Stevens' referencing earlier habeas rulings in Rasul, since R. determined they really were of "little value" when looked at closely.

The ruling was in no way compelled by precedent, and if anything, seems to me to go against it.

The question at hand is "who is a person" for the purposes of protections of the law? If the answer is by any measure "it depends," then the whole idea underlying the Constitution is washed up. Because what it depends on requires an exercise of power: be that power of the press, legal power, or military power. It cannot depend. That is why we fought the civil war: to Lincoln it could not depend.

I was impressed when I first Google's habeus corpus to find a story at Wikipedia of a black slave in England during the mid eighteenth century who was imprisoned without being charged. The court ruled in his favor and he was released. That was at a time when black slaves were almost uniformly viewed as chattel. ( at least in this side of the pond. )

Why should twenty first century Americans be so profoundly less enlightened, I wonder.

Can anyone explain to me why it is that Americans
a) presume to have the right to operate extra-legal institutions?
b) pretend that Gitmo is Cuban when it is developed by the US using US funds and contractors, operated by the US under US military law, and used for the protection of US interests?
c) what part of Jefferson's view that personal liberties were beyond the reach of the law can be defined by a law so as not to reach certain people?

Steve, Judge Robertson has a sentence on Somersett's Case. Underappreciating it, in my view.

Attention Comrades,
Please visit http://ministryoflove.wordpress.com to learn about our creative protest of the Military Commisisons Act, which invalidated Habeas Corpus.
O' Brien

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