To those of us that think the Bush Administration is shameful in trying to detain foreign nationals indefinitely and (arguably) in violation of international law in a place specifically chosen so that federal jurisdiction would be a tricky issue, a blow was delivered today by the D.C. Court of Appeals. In today's 2-1 decision, the panel held that 1) the Military Commission Act stripped federal courts of jurisdiction over habeas petitions, and that there is no Suspension Clause violation as the right of habeas does not apply to aliens outside the United States (i.e., there are no constitutional problems with the MCA).
I agree with the first part of the decision that Congress was unusually clear and intended to have the MCA apply to pending habeas petitions. The detainees arguments might have provided an escape route for a panel that was looking for a way to rule in their favor, but it was quite a stretch.
I think the bigger question here though is whether Congress can strip federal courts of habeas jurisdiction. Here, I disagree with the D.C. Circuit. While the Constitution might not extend to aliens outside the territorial United States, it should apply to aliens involuntarily detained within the United States. Saying that Guantanamo Bay is not within the sovereign territory of the United States is absurd (as was recognized in Rasul). And allowing the executive to evade federal jurisdiction through selective placement of prisoners is a horrific precedent.
I simply don't understand this footnote 11 in the majority opinion:
The text of the Suspension Clause also does not lend itself freely to extraterritorial application. The Clause permits suspension of the writ only in cases of “Rebellion or Invasion,” neither of which is applicable to foreign military conflicts.So the logical consequence of that observation is that Congress cannot suspend the writ absent "Rebellion or Invasion." How does this support the proposition that Congress can suspend the writ.
The dissent makes an interesting distinction between individual rights contained in the bill of rights as compared to the constraints on Congressional Power contained in the Constitution, which reminds me of international treaty law (which treaties convey individually enforceable rights and remedies and which don't). The general presumption against the extra-territorial application of US (Constitutional as well statutory I would posit) law is to respect sovereign nations. Applying our laws on foreign soil could lead to some tricky foreign policy issues (and it often does). But here, the US runs a prison on land it leases from Cuba indefinitely. For all intensive purposes, it is U.S. land. There are no Cuban authorities involved here, no tricky questions of foreign criminal law. These are people in US custody on U.S.-leased land, they should be entitled to the protection of US law and US courts.
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National Security Advisors