Alpine Summit

Monday, November 14, 2005

What Has the Senate Been Doing?

Last night, my roomate pointed out to me that the Senate ("Republicans" is what he said, though 5 democrats voted for it too) voted on a military budget bill that had an amendment to suspend habeas corpus. He then went off on a tirade and how I should keep this in mind next time I think about voting for Republicans. He also cited an advocacy site mentioning that there have been preliminary efforts to extend this to citizens of the country. Of course, there is nothing of the sort to be found, so I'm calling that a rumor (at best). But then, what's with eliminating habeas corpus to foreign detainees? Peter Lushing has a great post about this at the CrimProf blog. His interest (as is mine) is whether this is constitutional, or a gross violation of human rights. My roomate told me to read Locke in order to see how he thinks the law should be applied--as if Locke's writings are as good as law, it seemed. I'm more interested in the current legal situation and what the law says.

On November 10 the Senate, in what may not be its final vote on the matter, approved an amendment to a military budget bill that would deprive the enemy combatants at Guantanamo Bay of federal habeas corpus. The bill would overturn the June 2004 Supreme Court opinion in Rasul v. Bush, 542 U.S. 466. This action of the Senate has excited much interest as a possible violation of the Suspension Clause of the Constitution, Article I, Section 9, Clause 2:

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.

I propose that “habeas corpus” in this provision is not the same, and is in fact of smaller scope, than the statutory phrase “habeas corpus” in the Rasul decision, which construed 28 USC 2241, subdivision (a), granting federal courts power to grant writs of “habeas corpus”. Rasul did not actually focus on the phrase “habeas corpus”; it was concerned with other phrases from the habeas chapter of the United States Code, such as “within their respective jurisdictions”. But the Court was concerned with the scope of the writ. We know, or think we know, what “habeas corpus” in the statute is, but is it the same as “habeas corpus” in the Suspension Clause?

The case for the negative is, to put it in the language of talk radio, the guys in the powdered wigs would have flipped over the idea that habeas extends to foreigners we are in combat with who have been captured and are being held by us abroad. While this crude formulation may hardly be equal to the scholarship the issue demands, it is hard to brush the conclusion off inelegantly though it may have been stated. If statutory habeas does extend to the Guantanamo detainees (an unarguable proposition, given that the Supreme Court is the ultimate authority on the meaning of a federal statute) does it ineluctably follow that Congress may not narrow the reach of the statute without running afoul of the Suspension Clause?


I really have a hard time believing that we are supposed to extend constitutional rights to foreign POWs. To me, it seems as absurd as allowing citizen prisoners to own firearms. Such things may be "intrinsic human rights" but then, I seriously doubt the founding fathers intended to allow foreign prisoners such rights for obvious reasons. My view is summed up quite nicely by Dr. Lushing.

Did the framers intend to constitutionalize a reach of habeas to alien prisoners of war being held abroad? Unlikely.


It will be interesting to see what happens in the next few months with this.

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