Law & Society Blog

The Supreme Court’s decision in Rasul v. Bush, No.03-334 establishes that foreign nationals, captured and detained outside the U.S., may challenge the lawfulness of their detention by writ of habeas corpus in U.S. federal courts. There are two complementary legal bases for habeas corpus petitions, one is constitutional, (article I, section 9, clause 2) the other is based on the federal habeas corpus statute (28 U.S.C. ¨? 2241). In Rasul, Justice Stevens, writing for the Court, focuses on the statutory writ under ¨? 2241. The constitutional writ is the focus of Justice Kennedy’s concurring opinion.

Section ¨? 2241 provides in relevant part that “[w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.ǃ? 28 U.S.C. ¨? 2241(a) (Emphasis added.) The issue is whether any district court has jurisdiction over individuals detained outside the U.S. In this context, the Supreme Court had to deal with three prior decisions: Ahrens v. Clark, 355 U.S. 188 (1948), Johnson v. Eisentrager, 339 U.S. 763 (1950), and Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1972).

Ahrens clarified that “within their respective jurisdictionsǃ? meant “within the territorial restrictions of those courts.ǃ? (Ahrens, at 190. Emphasis added.). That, by itself, is neither surprising nor particularly limiting, because the writ of habeas corpus is not addressed to the detainee but rather to the jailer or the officer who exercises control over the jailer. However, the Court further held that “[i]t is not sufficient … that the jailer or custodian alone be found in the jurisdiction.ǃ? (Id., at 190. Emphasis added.). If the detainee is within the territorial jurisdiction of any district court, that rule merely requires him or her to bring the writ in that court. (In Ahrens, the detainees were held in Ellis Island. Instead of bringing their action in the Eastern District of New York, they petitioned the district court in the District of Columbia.) However, if the detainee is beyond the territorial reach of any district court, as is the case with the detainees in Guantanamo, Cuba, the Ahrens rule of convenience effectively bars the detainee from exercising the writ of habeas corpus entirely. (The dissenters in Ahrens clearly foresaw and articulated that problem.) Thus, in Rasul, the Supreme Court had to find a way around Ahrens in order to make the statutory writ under ¨? 2241 accessible to the detainees. The Court took the position that Ahrens had been overruled by Braden in 1973. In Braden, the Court held “that the [detainees’] absence from the district court does not present a jurisdictional obstacle to the consideration of the claim,ǃ? (Braden, at 498) which meant that ¨? 2241 (once again) applied to cases where the jailer alone is within the territorial reach of a district court. Consequently, Rasul had a simple statutory solution: “Petitioners contend that they are being held in federal custody in violation of the laws of the United States. No party questions the District Court’s jurisdiction over petitioners’ custodians. Section 2241, by its terms, requires nothing more.ǃ? (Rasul, at 15).

What about Eisentrager? The Court explained that Eisentrager, the seemingly restrictive precedent on which the government relied, only addressed the scope of the constitutional habeas provision but did not speak to the jurisdictional reach of ¨? 2241. That explanation makes sense, because just two years before Eisentrager was decided in 1950, the application of the federal habeas corpus statute had already been severely restricted by Ahrens. Thus, absent a viable statutory basis for their habeas petition, the detainees in Eisentrager had to focus on the constitutional protections and the Court only spoke as to those. In his concurring opinion, Justice Kennedy focuses on the constitutional habeas provision and concludes that Eisentrager does not bar the Guantanamo detainees from access to the U.S. courts. For his argument, he relies on the Eisentrager framework, which sets out a sliding scale of constitutional protection for individuals depending on their connection to the U.S. Among the relevant criteria are citizenship, physical presence in the U.S. (or in territories controlled by the U.S. such as Guantanamo), and attitude towards the U.S. (friend or foe). In addition, factors of military exigency may be considered. On the basis of these factors, Kennedy concludes that the writ of habeas corpus is available to the Guantanamo detainees: they are on U.S. controlled territory, their status as friend or foe has not been determined (because they have been deprived of any legal proceedings), and after two years there is no credible claim of military exigency.

From a theoretical point of view, Kennedy’s concurring opinion is particularly interesting, because he acknowledges that “there is a realm of political authority over military affairs where the judicial power may not enter.ǃ? (Id., at 3). However, as the decision in Rasul confirms, it is the law itself that determines the realm where the judicial power may not enter. The legal system is autonomous in defining its own boundaries. Relying on the (constitutional and therefore legal) concept of separation of powers, the law acknowledges prerogatives of executive power. However, no subject matter and no executive conduct is per se beyond the reach of the law. Unchecked executive powers exist because of a (sometimes prudent) self-limitation of the legal system, but any such limitation may be revoked. In Rasul, the Supreme Court did just that.

License

This work is published under a Creative Commons Attribution-Noncommercial 2.5 License.