Chapter 1 Introduction What are the issues of the day?

Suspending the Writ

Merryman tells us that the President cannot suspend the writ - how was he authorized to suspend it in this case?

Was this a constitutional delegation of power?

Why did the court say that whether or not the president had the power to suspend the writ, it could not be done in this case?

Why does this also prevent the use of a military tribunal for civilians?

When Can the Writ be Suspended?

If the writ can only be suspended when the courts are not open, what does this imply about the society at that time?

What can congress do in its authorization to suspend the writ?

Why is this called martial law?

Is suspending the writ the real issue, or is it really suspending the constitution?

Why was this an issue in Katrina?

Limiting the Jurisdiction of the Federal Courts to hear Habeas Corpus Petitions

Is Habeas Corpus part of the original jurisdiction of the United States Supreme Court?

If not, then were does the court get the jurisdiction?

If Congress gives the jurisdiction, can it take it back?

Ex parte McCardle

What is your argument that the constitutional provision for the writ implies that the court must be able to review it?

Military Order of November 13, 2001

(1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and

(2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf, in

(i) any court of the United States, or any State thereof,

(ii) any court of any foreign nation, or

(iii) any international tribunal. . . .

Rasul v. Bush, 124 S.Ct. 2686 (2004)

Are these US citizens or permanent resident aliens?

Are they on US soil?

What does Eisentrager tell us the result should be?

The Status of Guantanamo

What is the key legal inquiry in this case?

What were the insular cases?

What do they tell us that might mitigate Eisentrager?

How did we get Guantanamo?

How long have we held it?

Any evidence we are ever going to let it go?

How does this make the case more like an insular case than like Eisentrager?

What is a Fundamental Constitutional Right?

What rights do the residents of an insular case territory get?

Has Congress imposed any rights in Guantanamo?

What are you left with?

Might habeas corpus apply even when other rights are not available?

"At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm, as well as the claims of persons detained in the so-called ‘‘exempt jurisdictions,’’ where ordinary writs did not run, and all other dominions under the sovereign’s control. . . ."

The Habeas Statute

Congress has granted federal district courts, ‘‘within their respective jurisdictions,’’ the authority to hear applications for habeas corpus by any person who claims to be held ‘‘in custody in violation of the Constitution or laws or treaties of the United States.’’ 28 U.S.C. §§2241(a), (c)(3).

Does this make a fundamental right?

History of Habeas Corpus

‘‘Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.’’

Why is this important to the case?

Distinguishing Eisentrager

What was the status of the persons in Eisentrager?

How do the Guantanamo detainees differ?

They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

The Legal Core of Eisentrager

Eisentrager assumed that a district court in the US did not have jurisdiction to over an order in Germany.

Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 495 (1973)

...the prisoner’s presence within the territorial jurisdiction of the district court is not ‘‘an invariable prerequisite’’ to the exercise of district court jurisdiction under the federal habeas statute. Rather, because ‘‘the writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody,’’ a district court acts ‘‘within [its] respective jurisdiction’’ within the meaning of §2241 as long as ‘‘the custodian can be reached by service of process.’’

Can the Custodian be served for Guantanamo cases?

The Rasul Court's Habeas Corpus Holding

In the end, the answer to the question presented is clear. Petitioners contend that they are being held in federal custody in violation of the laws of the United States.15 No party questions the District Court’s jurisdiction over petitioners’ custodians. Cf. Braden, 410 U.S. at 495. Section 2241, by its terms, requires nothing more. We therefore hold that §2241 confers on the District Court jurisdiction to hear petitioners’ habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base.