Chapter 1 Introduction What are the issues of the day?

What about the Alien Tort Claim Statute, 28 USC §1350?

The courts of the United States have traditionally been open to nonresident aliens. And indeed, 28 U.S.C. §1350 explicitly confers the privilege of suing for an actionable ‘‘tort . . . committed in violation of the law of nations or a treaty of the United States’’ on aliens alone. The fact that petitioners in these cases are being held in military custody is immaterial to the question of the District Court’s jurisdiction over their nonhabeas statutory claims.

How did Kennedy Distinguish Rasul from Eisentrager?

The facts here are distinguishable from those in Eisentrager in two critical ways, leading to the conclusion that a federal court may entertain the petitions.

First, Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities. . . .

The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status.

How does this Narrow the Majority Opinion?

Indefinite detention without trial or other proceeding presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.

Why is this an important limitation?

The Dissent

What was Scalia worried about in Rasul?

In abandoning the venerable statutory line drawn in Eisentrager, the Court boldly extends the scope of the habeas statute to the four corners of the earth.

Would Rasul apply in Iraq? Afghanistan?

What does Kennedy's concurrence tell us about the facts that may have driven Rasul?

The Detainee Treatment Act of 2005

(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider—

(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or

(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who—

(A) is currently in military custody; or

(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.

The Second Run at Denying Habeas Corpus to Guantanamo Detainees

(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 [§1005(e)(2) and (e)(3) of the DTA] 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.

Boumediene v. Bush, 128 S. Ct. 2229 (2008)

Rasul dealt with the statutory right to habeas corpus

Congress then amended the statute to prevent a statutory right of review

This case deals with whether there is a constitutional right to habeas corpus for these detainees

Limitations:

"We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue."

History of the Habeas Corpus Clause

Is there evidence that the founders took habeas corpus seriously?

Where is it located?

Is it part of the Bill of Rights?

Was the Bill of Rights part of the original Constitution?

Why is this significant?

The (Anti-)Suspension Clause

“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.”

How is rebellion different from war?

Is there a rebellion or an invasion?

Is public safety conjunctive or disjunctive?

Are the conditions met for the suspension clause?

Guantanamo as Sui Generis

"Recent scholarship points to the inherent shortcomings in the historical record. And given the unique status of Guantanamo Bay and the particular dangers of terrorism in the modern age, the common-law courts simply may not have confronted cases with close parallels to this one. We decline, therefore, to infer too much, one way or the other, from the lack of historical evidence on point."

Remember Kennedy's limitation on Rasul - is this the same caveat?

Who Decides Whether the US is Sovereign over a Territory?

If the military captures land, who decides whether we can keep it? (Independent of international law concerns.)

Who does the court say it would defer to to decide whether sovereignty is being exercised in a territory?

We therefore do not question the Government’s position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay. But this does not end the analysis. Our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory.