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tc complain of the detention until after the military had made a
final determination that he was an unlawful enemy combatant (if
it ever did); furthermore, the detainees could no longer obtain
judicial review of the conditions of their confinement. The DTA
also established a precedent for future legislation taking away
additional chunks of the habeas corpus jurisdiction of the federal
courts, a precedent followed 10 months later when Congress en^
acted the MCA and abrogated even more of the federal judiciary's
habeas jurisdiction, some of it retroactively.
Because the OTA said nothing about habeas cases already filed,
the limitations on federal habeas corpus jurisdiction created by
the OTA were wholly prospective, leaving pending habeas cases
(including the Rasul case itself) filed before passage of the OTA
wholly untouched. Nonetheless, the DTA was still a grave error. It
meant that after the Guantanamo detainees had taken their case
to the Supreme Court and won a decision that under habeas statu
tory law they were not beyond the reach of the writ of habeas
corpus. Congress changed the habeas statutes to explicitly place
outside the reach of habeas corpus all Guantanamo detainees
who had not filed a habeas petition prior to the DTA. It meant
that Congress had meddled with habeas corpus by imposing new
restrictions on the power of courts to issue the writ in the future.
It meant that Congress had drastically reduced judicial oversight
of a despised, powerless minority of non-citizen prisoners subject
to indefinite and harsh incarceration and deprived of international
human rights protections. It sent a chilling message that, with
regard to Guantanamo detainees, Congress was fearful of and hos
tile to habeas corpus proceedings which would do nothing
more than what such proceedings are supposed to do—in
quire into the legality of the imprisonment
and conditions of confinement.
The MCA is worse than the OTA.
The MCA amends 28 U.S.C. § 2241(e),
originally enacted by the DTA, so
that it now provides that no federal
court shall have jurisdiction to hear
or consider a habeas petition filed
by an alien detained by the United
States who has been determined by
the United States to be properly
detained as an enemy combatant
or who is awaiting such determina
tion. Furthermore, the MCA specifically
provides that this restriction on federal ha
beas corpus jurisdiction applies to all habeas cases,
without exception, pending on or after the date the
MCA was enacted. The MCA therefore continues the
DTA's ban on habeas proceedings in behalf of foreign
nationals detained to military custody as suspected
enemy combatants, except that now it is no longer limited to for
eign nationals confined at Guantanamo. More importantly, it pur
ports to require dismissal of pending habeas cases previously filed
by foreign nationals the government alleges to be enemy combat
ants. For the first time in American history. Congress has enacted
a statute explicitly compelling courts to dismiss, summarily and
abruptly, numerous habeas corpus proceedings already lawfully
pending in court.
The MCA hobbles federal habeas corpus in several other re
spects. First, it provides that no person may invoke the Geneva
Conventions as a source of rights in any federal habeas corpus
proceeding in which the United States or a current or past federal
official, civil or military, is a party. This has the practical effect of
nullifying in part a long-standing provision in the federal habeas
statutes under which relief may be granted from custody "in viola
tion of the... treaties of the United States." For the first time in
this country's history, courts have been statutorily prohibited from
releasing persons confined in contravention of a treaty. This prohi
bition, it should be noted, is not limited to habeas petitions filed
by foreign nationals; it extends also to habeas corpus proceed
ings instituted by American citizens. The MCA therefore robs all
Americans of the right to obtain habeas relief from imprisonment
that violates any of the foa Geneva Conventions, the important,
the most enlightened, the most respected, and the most widely
adopted human rights treaties the world has ever known.
Second, the MCA denies federal courts habeas corpus jurisdic
tion in any case, including already pending cases, to hear chal
lenges to the lawfulness of the procedures of the military commis
sions for trying alien unlawful enemy combatants established by
the MCA. Again, Congress is compelling courts to dismiss properly
filed, lawfully pending habeas corpus petitions. The MCA does, it
is true, authorize persons convicted by one of these military com
missions to directly appeal their convictions
to the United States Court of Appeals
for the District of Columbia Circuit.
Persons brought before these com
missions, however, have no right to
speedy trial, which means that they
may be charged but then held indefinitely with
out trial, yet have no remedy in the courts.
Third, the MCA implicitly restricts the avail
ability of habeas corpus relief by hugely enlarging
the power of the federal government tc detain
American citizens in military custody without
criminal charges. In Uamdi v. Rumsfeld, 542 U.S. 507
(2004), the Supreme Court bought the government's war-
on-terrorism argument that captured enemy combatants could be
denied habeas relief and detained in military custody for the dura
tion of hostilities and that even U.S. citizens could be so detained
as enemy combatants. (The habeas petitioner in that case, Yasser
Esam Hamdi, was an American citizen who had been captured in
Afghanistan after allegedly taking up arms for the Taliban there.
Because he was a U.S. citizen, he was imprisoned as an enemy
combatant not at Guantanamo, but in a maximum security mili
tary prison in South Carolina.) The Court's rationale was that the
purpose of detaining enemy combatants was to prevent captured
individuals from returning to the field of battle and taking up
arms once again. The Court therefore defined an enemy combatant
as an individual who was part of or supporting forces hostile to
the United States and who engaged in armed conflict against the
United States. The MCA, however, defines an enemy combatant to
be a person "who has engaged in hostilities" against the United
States or "who has purposefully and materially supported hostili
ties against the United States." This makes it likely that in the fu
ture American citizens who have not committed any crime or ever
taken up arms or fought on the field of battle—indeed, who have
never left American soil—may be classified as enemy combatants
by the federal government, arrested by military police, confined
indefinitely in military prisons and denied habeas corpus relief
by the courts. Under the MCA, in short, American citizens deemed
by the government to be enemy combatants may be whisked from
their homes by armed soldiers and detained in a military prison
for the duration of hostilities against terrorism, unable to obtain
habeas corpus relief.
Indefensible
These two anti-habeas corpus statutes cannot be defended
as examples of the Congress' constitutional power to suspend
the privilege of the writ. Under the Constitution, that power
cannot be lawfully exercised except in cases of rebellion or
invasion. There is no rebellion in the United States, and this
country has not been invaded. Furthermore, when in the past
Congress has acted to suspend the writ—for example, during
the Civil War—it has always expressly announced in the sus
pension statute itself that it was exercising its constitutional
suspension power, whereas the current Congress has done no
such thing.
The two anti-habeas corpus statutes recently enacted by the
109th Congress are disasters. They undermine the writ of habeas
corpus, and they establish precedents for further legislative ero
sion of the writ. They vastly expand the powe r of the military
to imprison American citizens not charged with any crime. They
manifest contempt for the judiciary.
They flout the Geneva Conventions.
"There are," James Madison wrote, "more instances of
abridgment of freedom by gradual and silent encroach
ments than by violent usurpations." The anti-habeas corpus
statutes do not come near to totally abolishing the writ of
habeas corpus. But they do stealthily encroach upon it, and
there is no logical or practical reason why, if the statutes
are upheld by the courts (as they probably will be, in
view of the fact that the federal courts are now packed
with right-wing judges), we should not expect addi
tional, increasingly worse encroach
ments to be enacted by future
Congresses and then validated by
the courts. Certainly there will al
ways be widely loathed, politically
helpless groups or individuals here
whom the government and perhaps the
majority of Americans, based solely on
hatred, prejudice or irrational fear, regard as extremely dangerous
and deserving of being locked up permanently without interference
from the courts.
Law professor Jonathan Turley recently noted that, to this
nation's shame, the public was "strangely silent" as these anti-
habeas corpus statutes were being debated in Congress and that
their enactment produced only a "national yawn." If present trends
continue, we Americans might cease dozing one day and suddenly
realize that the writ for revivifying us from the death of illegal
confinement has itself died, that while we were slumbering, the
Great Writ suffered the death of a thousand cuts, that habeas cor
pus is now habeas corpse.
Donald E. Wilkes, Jr.
Donald E. Wilkes, Jr. teaches in the University ot Georgia School of Law.
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