Saturday, August 09, 2008

Did You Know...

...that as far back as 1950 the Supreme Court of the United States had already determined that aliens have no right to habeas corpus protections in the US courts?

In the 1950 Johnson v. Eisentrager
decision the court ruled that "[a] nonresident enemy alien has no access to our courts in wartime." In fact, that sentence is the first holding of the whole gosh darn opinion. How much clearer can it be?

In order to counteract the Rasul v. Bush ruling (in which the justices granted habeas protections to Guantanamo detainees), Congress passed the Detainee Treatment Act (DTA) of 2005. This law gave exclusive jurisdiction to all habeas petitions from Guantanamo detainees to the D.C. Circuit Court. This basically precluded any court from hearing habeas appeals from detainees.

However, Hamdan v. Rumsfeld declared that the DTA did not apply to cases pending when the DTA was enacted. So, Congress responded with the Military Commissions Act (MCA) of 2006. The MCA "(1) denie[d] jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants, ... [and] (2) denie[d] jurisdiction as to 'any other action against the United States . . . relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement' of a detained alien determined to be an enemy combatant."

Pretty clear cut, huh?

As Lee Corso says, "Not so fast, my friend!" In Boumediene, the Court reaffirms its holding in Rasul v. Bush.
Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated as enemy combatants or because of their presence at Guantanamo.
How exactly do they square this ruling with Johnson v. Eisentrager? Not well, I am afraid. If my reading of the syllabus is correct, the Court holds that Eisentrager's holdings rest on the practical considerations of dealing with habeas petitions. In other words, it seems that Kennedy et. al. conclude that Eisentrager doesn't reject the concept of habeas rights for aliens, but merely responds to the practical difficulties of responding to such petitions.

Unfortunately, that is not what Eisentrager says in the first holding. Here is is. (Sorry for the length.)
1. A nonresident enemy alien has no access to our courts in wartime. Pp. 768-777.
(a) Our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and nonresident enemy aliens who at all times have remained with, and adhered to, enemy governments. P. 769.
(b) In extending certain constitutional protections to resident aliens, this Court has been careful to point out that it was the aliens' presence within its territorial jurisdiction that gave the Judiciary power to act. P. 771.
(c) Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to wartime security. P. 774.
(d) A resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a "declared war" exists. Courts will entertain his plea for freedom from executive custody only to ascertain the existence of a state of war and [339 U.S. 763, 764] whether he is an alien enemy. Once these jurisdictional facts have been determined, courts will not inquire into any other issue as to his internment. P. 775.
(e) A nonresident enemy alien, especially one who has remained in the service of the enemy, does not have even this qualified access to our courts. P. 776.
I really hate Anthony Kennedy. We could have had Robert Bork, instead we are stuck with this schmuck.

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