THE EVOLUTION OF HABEAS CORPUS RIGHTS AFTER 9/11 FOR NON-CITIZENS OUTSIDE THE TERRITORIAL BORDERS OF THE UNITED

STATES

Anthony F. Anise

Introduction The United States Constitution is a document that provided sweeping rights and privileges to U.S. citizens. Among them is the right of habeas corpus: The right to be brought before a tribunal when accused of a crime. However, the Constitution does not specify any rights to non-citizens. International law changed that. For example, as a signatory of the Geneva Conventions, the United States is bound by humanitarian laws and owes a duty to non-citizens.1 Despite treaties of international obligations, non-citizens were not given substantive constitutional rights, especially outside the territorial borders of the United States. This was made clear in the case of Johnson v. Eisentrager, where the Supreme Court held that the U.S. owes no habeas corpus rights to non-citizens, accused of violating laws of war, detained by the American military on an American military base on foreign soil.2 After 9/11, Guantanamo Bay played a pivotal role in changing that. The military base at Guantanamo is on property leased from Cuba after its independence from Spain.3 Because the U.S. have some sweeping rights in the base, but not ultimate sovereignty,4 Guantanamo Bay gave the U.S. a flexibility to be shielded from legal recourse. A prime example of this flexibility was found in the pre 9/11 case, Sale v. Haitian Centers Council,

See Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135. 2 See Johnson v. Eisentrager, 339 U.S. 763 (1950). 3 See Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval Stations, U.S.-Cuba, Feb. 23, 1903, T.S. No. 418 [hereinafter 1903 Lease Agreement]. 4 While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United states of said areas under the terms of the agreement the United states shall exercise complete jurisdiction and control over and within said areas.1903 Lease Agreement, art. III. 2

Inc.5 is a prime example of this flexibility. Because bringing Haitian refugees to the U.S. would grant them particular rights, the U.S. put them on Guantanamo Bay and was shielded from legal recourse.6 After 9/11, law suits by detainees held on the base created a series of Supreme Court precedents that changed the course of non-citizen constitutional rights. This paper analyzes these cases and tracks the progression of habeas corpus rights of detainees on Guantanamo Bay. Then, this paper analyzes how the Sale case would have come out differently if it were tried today for the first time. Early Days of Guantanamo History To understand how the United States' position on rights of non-citizens has evolved after 9/11, an understanding of the history Guantanamo Bay is in order. Guantanamo Bay has undergone a number of legal redefinitions throughout its history. Such did not occur in a vacuum, rather as the courts' reactions to the crucial, often controversial, roles that Guantanamo Bay played in various pivotal and historical events. Each event in Guantanamo's history set up the naval station for its next use. Throughout its history, the language of the lease agreement has remained constant and in force. This agreement has survived over a hundred years and several revolutions in Cuba. It is the foundation on which Guantanamo Bay's jurisprudence is built. In 1897, the U.S. had enough. Cuba is fighting for its independence and, after years of successfully, almost miraculously, fighting off the Spanish forces, the U.S. was finished standing

5 6

509 U.S. 155 (1993). See id. 3

idly by, and it decides to join the Cubans in their fight for independence.7 During this time, there was a growing sentiment in the U.S. that Cuba should be anexed to the country.8 Therefore, Congress added a clause to the declaration of war in what became known as the Teller Amendment.9 The U.S. made the goal of American involvement clear: The purpose is Cuban independence.10 The U.S. is determined to "leave the government and control of the Island to its people", and disclaims any "intention to exercise [permanent] sovereignty, jurisdiction, or control" of Cuba.11 U.S. marines, entering through Guantanamo Bay were pivotal in assuring Cuba's swift victory. After Spain and the U.S. signed the treaty of Paris, the U.S. took temporary control of the island to establish a government of the Island's own people. After several years, Congress passed another amendment detailing the conditions for withdrawal from Cuba.12 One of these conditions was that a set of seven articles had to be placed in Cuba's constitution.13 The fifth of these articles sets out that Cuba was to lease or sell areas of Cuba to the United States for use as naval and coaling stations.14 The purpose of this lease or sale was to protect the independence of Cuba and to grow the defense of the United States.15 These articles were also added to a treaty between the U.S. and Cuba in 1903 titled Relations with Cuba.16

See RADM Robert D. Powers, Jr., USN, Caribbean Leased Bases Jurisdiction, 15 JAG J. 161 (1961) [hereinafter Caribbean Leased Bases Jurisdiction]. 8 Id. 9 30 stat. 738 (1898). 10 See id. 11 Id. 12 See 31 Stat. 895 (1901). 13 Id. 14 Id. 15 Id. 16 See Treaty Defining Relations with Cuba, U.S.-Cuba, July 2, 1903, T.S. No. 437. 4

In the Lease agreement, the famously ambiguous language established Guantanamo Bays sovereignty: Cuba was given "ultimate sovereignty" and the U.S. was given "complete jurisdiction and control" of the base.17 In 1934, the 1903 treaty was abrogated and replaced with a new treaty.18 In the latter, the two countries agreed on conditions for termination of the lease: The lease will continue unless the U.S. abandons the base or the two countries agree to terminate the lease.19 This means that Cuba was given no opportunity to ever unilaterally terminate the lease for any reason. In 1959, after a revolution led by Fidel Castro, diplomatic relations between the U.S. and Cuba ceased. The U.S. continues to honor the Guantanamo lease. Castro does not wish to continue the lease, but has not taken military action or force to remove the United States from the base. Analysis The Teller amendment emphasized the lack of the U.S.'s intent to have any permanent sovereignty, jurisdiction, or control on Cuba. However, by 1903, that is essentially what happened. Not only did the U.S. hold an indefinite lease, it expressly held "complete jurisdiction and control" over the bay. In 1934, to solidify the permanency of the lease, the treaty stripped Cuba of any implicit unilateral power to terminate the lease. In 1959, with the cessation of all diplomatic relations between the U.S. and Cuba, one of the main purposes of the lease, the protection of Cuba, was indemnified, yet the lease continued.

17 18

See 1903 Lease Agreement, art. III. See Treaty Defining Relations with Cuba, U.S.-Cuba, art. III, May 29, 1934, 48 Stat. 1683, T.S. No. 866. 19 Id. 5

This evolution of U.S. power and control over Guantanamo Bay cannot be understood in this vacuum, free from other historical contexts.20 After all, it was the U.S. who freed Cuba from the Spanish, and as far as every other country was concerned, the treaty of Paris gave Cuba to the U.S. as its own property.21 All the U.S. had was its own word to keep, and for the most part, it did keep it and returned the Island to its people.22 Therefore, whether the usurpation of Guantanamo into U.S. control was fair or not, is not a simple question. It is also not a question presented here. However, the understanding of Guantanamo Bay's adoption into U.S. control is essential in establishing a reference point from which all future litigation and legislation stemmed and to which legislators and judges looked back to. This was a Bay that the U.S had control over, in an unlimited lease (forced on Cuba), but to which the U.S. has no claim of sovereignty. Furthermore, the sovereign power with ownership of the property has no diplomatic relations with the state controlling it. This entirely unique situation results in a number of legal issues represented in the following cases. Principle among these issues is whether American complete jurisdiction and control necessitates the continuance of constitutional rights to Guantanamo Bay, and if so, how much of those rights apply, and to whom. The Pre-9/11 Baseline Sale

20 21

See Caribbean Leased Bases Jurisdiction. It is true that between Spain the United States,-indeed between the United States and all foreign nations,-Cuba, upon the cessation if hostilities with Spain, and after the treaty of Paris, was to be treated as if it were conquered territory. Pearcy v. Stranahan, 205 U.S. 257, 265 (1907). 22 But, as between the United States and Cuba, that island is territory held in trust for the inhabitants of Cuba. Id. 6

In order to view and understand how the habeas corpus rights of non-citizens evolved post 9/11, an understanding of the case law before 9/11 is essential to establish a baseline to which post 9/11 cases may be compared. A thorough representation of the state of Guantanamo and non-citizen rights can be summed up in two cases. The first is Sale v. Hatian Centers Council, Inc.23 Facts: In 1981, Haiti and the United States made a repatriation agreement.24 In it, the United States agreed to repatriate Haitian citizens that are intercepted attempting to leave Haiti to the United States.25 Haiti agreed not to prosecute the repatriated citizens, and the U.S. agreed not to return anyone with refugee status, without his consent.26 Both countries agreed to prosecute illegal human traffickers.27 In the following decade, about 25,000 refugees were intercepted by the Coast Guard and interviewed on the Coast Guard cutters.28 Economic migrants were screened out and repatriated; political refugees were screened in and brought to the United States for naturalization.29 In 1986 a democratic revolution resulted in the first democratically elected president of Haiti, Aristide in 1990. However, the peace was short-lived when, in 1991, a military coup caused a mass migration from Haiti, in which over 34,000 Haitians were interdicted by the Coast Guard in a mere 6-month period.30 Because of the overwhelming number of interdictees, the U.S. was unable to keep up with the interviews, and the Coast Guard Cutters were saturated.31 A temporary camp was set up on Guantanamo Bay to house the

23 24

509 U.S. 155 (1993). See id. at 160. 25 See id. 26 See id. 27 See id. 28 See id. at 161. 29 See id. at 160. 30 See id. at 162-63. 31 See id. at 163. 7

overflow.32 When Guantanamo Bay was filled beyond capacity, the U.S. was left with two options: Either allow the Haitians into the U.S. for screening, or return them without any screening. The U.S. chose the latter.33 The Respondents, relying on domestic and international law argued that the U.S. is forbidden from returning the interdictees without a proper interview to determine if they have refugee status.34 The court disagreed, arguing that these provisions only apply for those who enter U.S. soil.35 Because these interdictees were on Coast Guard Cutters and Guantanamo Bay, they were without remedy. Analysis: This case gives a clear cross-sectional window into pre 9/11 jurisprudence. Specifically, the court relies on the sovereign limits of the United States to limit the countrys duty owed to non-citizens outside of it borders. Guantanamo Bay was implicitly assumed to be equivalent to the legal status of Coast Guard cutters on the high seas, outside of the United States territory. There was not even a sentence of analysis or an express assumption of this legal fact. Guantanamos position was understood in the case to be outside the U.S., and therefore not subject to U.S. laws.36 Concededly, each statute was explained to be only applicable within the United States, and therefore, this case did not exclude all of U.S. laws from applying in Guantanamo. However, absent express provisions that relate to Guantanamo or territory controlled outside the U.S., the U.S. law does not apply. Johnson v. Eisentrager

32 33

See id. See id. at 163-64. 34 See id. at 166-68. 35 See id. at 171-79. 36 See id. 8

Sale gave insight into the common attitude before 9/11, but this case was not decided on Constitutional grounds. In an older case, Johnson v. Eisentrager, the court denied habeas corpus rights to any alien enemy who was convicted of a law of war and was held outside of the United States.37 In that case, the prisoners were held by U.S. citizens on a military base in Germany.38 These two cases alone are sufficient to paint a grim picture of habeas corpus rights for non-citizens tagged as enemies and kept at Guantanamo Bay: U.S. law does not apply in Guantanamo because it is outside of the U.S., as explained in Sale. Habeas corpus does not apply for enemies at war, convicted of breaking laws of war, outside the U.S. as explained in Eisentrager. Therefore, habeas corpus does apply in Guantanamo Bay for enemies convicted or breaking laws of war. The Post-9/11 Evolution of Non-Citizen Rights Congressional Response to 9/11 Three days after the terrorist attacks of September 11, 2001, Congress passed the Authorization of Use of Military Force Against Terrorists, (hereinafter AUMF).39 In it, Congress granted the President the authority to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.40 Pursuant to the authorization, the military invaded Afghanistan and battled against al Qaeda and the Taliban.41 Hundreds of people were captured

37 38

See 339 U.S. 763 (1950). See id. at 765 39 Authorization for Use of Military Force, S.J. Res. 23, 107th Congress (2001). 40 Id. 41 See Rasul v. Bush, 542 U.S. 466, 470 (2004). 9

abroad during these hostilities were detained at Guantanamo Bay.42 The detainees had little to no process. Litigation ensued, and the Supreme court spoke in a series of cases that slowly shifted the U.S. position on rights of non-citizens. Rasul Facts: The first decision came in 2004 in the case of Rasul v. Bush.43 Fourteen detainees held at Guantanamo Bay contested their stay, seeking habeas corpus relief.44 Two of the petitioners were Australian citizens, the other twelve were citizens of Kuwait.45 None of them had U.S. citizenships. 46 The major issue in this case is whether the court had jurisdiction to hear the cases of noncitizens held outside the United States.47 The District Court answered the question in the negative and dismissed the cases.48 The court relied on Johnson v. Eisentrager stating that aliens detained outside the sovereign territory of the United States [may not] invoke a petition for a writ of habeas corpus.49 This was affirmed by the Court of Appeals.50 The U.S. Supreme Court was not as quickly dismissive. The Court explains the deep roots of the writ of habeas corpus in common law.51 Then it stated that the strongest case for the applicability of the writ is in reviewing the legality of Executive Detention.52 The question before the court dwelt upon the distinction between control and sovereignty that was made by the
42 43

See id. 542 U.S. 466 (2004). 44 See id. at 470. 45 See id. 46 See id. 47 See id. at 471. 48 See id. at 472. 49 Id. at 472-73 (quoting Rasul v. Bush, 215 F. Supp. 2d 55, 68 (D.C. Cir. 2002) (citing Johnson v. Eisentrager, 339 U.S. 763, 784 (1950))). 50 See Rasul v. Bush, 215 F. Supp. 2d 55 (D.C. Cir. 2002). 51 See 542 U.S. 466 at 473-75. 52 Id. at 474 (quoting Swain v. Pressley, 430 U.S. 372, 380 (1977)). 10

Guantanamo lease agreement. Namely, the issue was whether the habeas statute confers a right to judicial review of the legality of executive detention of aliens in a territory over which the United States exercises plenary and exclusive jurisdiction, but not ultimate sovereignty. 53 To answer the question, the court first put a great deal of effort to distinguish the case from Eisentrager.54 Specifically, the court stated that the detainees in this case were not citizens of a country at war with the United States.55 Then it differentiated between constitutional and statutory habeas corpus claims.56 While Eisentrager was a constitutional claim, in this case the claim was statutory. However, the decision did not rest merely on distinguishing Eisentrager. The Court further held that in the writ of habeas corpus, the important jurisdictional inquiry is whether the court has jurisdiction over the jailer, not the jailee.57 The Court found that it did have jurisdiction, and therefore reversed the Circuit Court.58 Analysis: The way the U.S. Supreme court chose to reason its opinion is quite telling. The court started the opinion on a path to give alien detainees at Guantanamo substantive habeas corpus rights. However, it did not go so far. Instead, it imposed a duty on the military in their capacity as jailors of aliens. The process turned into an entirely different case. If habeas rights were substantively conferred on these aliens, especially a statutory rather than constitutional right, it begs the question: What other rights do these detainees have? However, if the jailor is responsible for protecting the habeas corpus rights under its detention, there is no such question of unbridled broadness that the court would need to clean up in the future. The case gives no direct rights to any alien, only by proxy through the jailor.
53 54

Id. at 475 (quoting 1903 Lease Agreement, art. III). See id. at 475-76. 55 See id. 56 See id. 57 See id. at 481-82. 58 See id. at 484-85. 11

Before this case, the Sale and Eisentrager decisions would seem to give Guantanamo, and any base or vessel in exclusive U.S. control, a quite similar status. The habeas corpus rights afforded to non-citizens are practically non-existent. The court here seemed to try its best to stop a clear constitutional violation, whether in letter or spirit, without disturbing the status quo. Specifically for non-citizens, this case gave the bare essentials of rights by proxy, while protecting justice. Hamdi On the same day as Rasul, the Court announced another habeas corpus case, Hamdi v. Rumsfeld.59 The Petitioner is a United States citizen, born in Louisiana, who claims to have travelled to Afghanistan to do relief work soon before 9/11.60 After the invasion of Afghanistan, he was trapped there and was captured by a coalition fighting the Taliban.61 Then he was given to the U.S. military. He was interrogated in Afghanistan, held briefly at Guantanamo Bay, then transferred to naval bases in the United States because he was a U.S. citizen.62 His father, on his behalf, filed for a writ of habeas corpus.63 The District court granted the motion, giving Hamdi access to a court-appointed attorney.64 However, the 4th Circuit reversed, holding that Hamdi was given sufficient process when considering the governments security and protection interests.65 On remand, the government filled the Mobbs Declaration in which it explains its reasons for detaining Hamdi

59 60

542 U.S. 507 (2004). See id. at 510-11. 61 See id. at 510. 62 See id. 63 See id at 511. 64 Id. at 512. 65 Id. (citation omitted). 12

that differed substantially from Hamdis account.66 The District court found it lacking, but the Circuit Court reversed on other grounds holding inter alia that no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the Government's assertions was necessary or proper.67 The first question before the court was whether the Executive has the authority to detain citizens who qualify as enemy combatants.68 The court held that it does, saying the AUMF was sufficient statutory authority for the Executive to detain U.S. citizens.69 The next question was whether citizens can be held as enemy combatants, given that the nature of the war on terror is indefinite.70 The court qualified its affirmative response stating that although citizens may be detained, it is only for the duration of the U.S. military operation against the Taliban.71 The Court also limited its holding to detainees for which there is sufficiently clear evidence to be considered enemy combatants.72 Here, the Court also suggested that, had Hamdi been held at Guantanamo Bay or another foreign base, the constitutional issue and decision would not be the same.73 Next, the Court asked what process was due Hamdi as a citizen tagged as an enemy combatant.74 Here the Court held that due process would require two prongs: (1) notice by the government of the claims and factual bases by the government, and (2) a fair opportunity to rebut

66

The Mobbs declaration was basically the Governments version of the story, which stated that Hamdi trained with the Taliban. See id. at 512-13. 67 Id. at 513. 68 Id. at 516. 69 See id. at 518. 70 Id. at 510. 71 See id. at 521. 72 Id. at 523. 73 Id. at 524. 74 Id. 13

the governments assertions before a neutral decision-maker.75 Petitioner did not receive those protections. Therefore, Hamdi was due more process than he received. Analysis: This case plays an important role in the analysis even though it is not a case of a non-citizen because it shows the contrast for how the Supreme Court approached the decision as opposed to Rasul. First, the court is clear in qualifying the issues with the fact that the Petitioner is a citizen. If the Rasul opinion, delivered on the same day, is to be believed and habeas Corpus is a requirement of all jailors in which the United States has jurisdiction, why does the habeas claim take a completely different approach and analysis? If the jailor is the same or similar, why does it matter that a detainee is or is not a citizen? It may be argued that the jailor is not the same because Rasul was being held in Guantanamo Bay, but Hamdi was held in the United States. However, in Hamdi, the court expressly explained that it would have made no difference whether the jail was in the United States, Guantanamo Bay, or a foreign base, so long as the jailor was still the U.S. military. Despite this, the court gave special attention to the fact that Hamdi was a United States citizen. Therefore, it would seem that the reason for differentiation is more nuanced. I would argue that the reason the decision was qualified in Hamdi to relate only to U.S. citizens is the same reason that Rasul would not recognize rights of non-citizens directly, but only through the proxy of a jailor. The court was trying to avoid giving any substantive rights to non-citizens outside of territorial borders, as was the case before 9/11. This reluctance is understandable, but it would not last. In the following cases, the court began to broaden its scope for non-citizen rights, specifically rights of habeas corpus. Hamdan

75

See id. at 533. 14

Facts: Hamdan v. Rumsfeld,76 starts out no different than the previous two: Petitioner was detained in the Afghanistan hostilities and held in Guantanamo as an enemy combatant.77 In this case, the Petitioner, Hamdan, was a non-citizen.78 However, he was tried by a military commission after the government charged him with conspiracy to commit ... offense triable by military commission.79 Then, Hamdan filed a motion for the writ of habeas corpus.80 He claimed that the military commission was not authorized by Congress or common law and that it violated basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.81 The District Court granted the habeas corpus petition, but the Circuit Court reversed. Then the Supreme Court granted certiorari.82 Before the Supreme court heard the case, Congress passed the Detainee Treatment Act (hereinafter DTA), which provided that no court ... shall have jurisdiction to hear or consider ... any application for ... habeas corpus filed by ... an alien detained ... at Guantanamo Bay.83 The DTA applies to any claim with a review pending at the DTAs effective date.84 That was the case for Hamdan. Thereafter, the government filed a motion to dismiss the claim because the DTA has the immediate effect, upon enactment, of repealing federal jurisdiction.85 Hamdan responded with constitutional and statutory arguments.86

76 77

548 U.S. 557 (2006). Id. at 568. 78 See id. at 566. 79 Id. 80 Id. 81 Id. at 567. 82 Id. 83 Id. at 572 (citing 119 Stat. 2739-40). 84 See id. 85 Id. 86 See id. at 575-78. 15

The court held that the DTA did not deprive the Supreme Court of jurisdiction because statutory construction dictates that the presumption is for a lack of retroactive application. 87 Because the statute does not have clear congressional intent favoring [retroactive application], it does not apply to this case.88 Then the court decided the case on its merits. The decision closely matched the District Court. First, the court held that holding the appeal until the completion of the military tribunal was not appropriate.89 Substantively, the Court found the military commissions in violation of the UCMJ and the Geneva Conventions.90 Analysis: This case began to inch closer toward giving non-citizens substantive constitutional rights. First, the fact that the Court did not ditch the case on procedural grounds is quite telling. The Court had ample opportunity to dodge the question and rule on a technicality. However the opinion very neatly dispels of the procedural issues before deciding the substantive ones. Of course, a simple response could be that the Court is merely applying the rule of law. However, viewing the court more cynically, the opinion gives the impression that the Court was eager to decide this on the merits.91 Despite this eagerness, the courts decision rests on statutory and international law. Although both are binding and powerful, the court does not make a constitutional argument for the Due Process Clause or the Suspension Clause. Similar to Rasul, the Court is imposing a duty on the jailor, the military, in its capacity as a military tribunal. However, in deciding the case on
87 88

Id. at 584. Id. at 576. 89 Id. at 585 90 See id. at 587. 91 Recognizing, as we did over a half century ago, that trial by military commission is an extraordinary measure raising important questions about the balance of powers in our constitutional structure, we granted certiorari. Id. at 567 (citation omitted). 16

international law grounds, specifically on humanitarian laws of the Geneva Conventions, the Court has effectively acknowledged and given substantive habeas corpus rights to non-citizens abroad, even though those rights are not based in constitutional laws. Boumediene Facts: Boumediene v. Bush,92 is a follow-up to Hamdan. After Hamdan held that the DTA does not apply to pending actions because it does not say so explicitly. Congress responded with the Military Commissions Act (hereinafter MCA), which expanded the denial of federal jurisdiction of habeas corpus petitions to include any other action against the United States ... relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement.93 The case is a consolidation of petitioners who had habeas corpus claims pending at the time the MCA was enacted.94 The Court of Appeals ruled that the statute effectively strips federal courts of jurisdiction to hear the habeas corpus claims and that the claims should therefore be dismissed.95 The Supreme Court agreed with the Circuit Courts reading of the statute.96 However, in enquiring into the validity of MCA, the long-awaited constitutional analysis into whether noncitizen enemy combatants, detained at Guantanamo Bay, have a substantive constitutional right of habeas corpus commenced. The court found that they did.97 The writ of habeas corpus is found in the U.S. Constitution in the Suspension Clause: The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of

92 93

553 U.S. 723 (2008). Id. at 724 (citation omitted). 94 Id. at 735. 95 Id. at 735-36. 96 Id. 97 Id. at 795. 17

Rebellion or Invasion the public Safety may require it.98 The question for the court is in two parts: (1) does the designation as enemy combatants bar petitioners use of the writ, and (2) does the location of the petitioners, at Guantanamo Bay, bar their use of the writ.99 The Court goes through a thorough historical analysis of the history of the writ and of what constitutes sovereignty.100 Specifically, the court differentiates between sovereignty as a matter of power and sovereignty as a matter of right.101 De jure sovereignty belongs to Cuba but de facto sovereignty is retained in the United States.102 Then the court rejected the Governments argument that de jure sovereignty is the touchstone of habeas corpus jurisdiction.103 The court then uses the Eisentrager case to produce a test for determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ.104 The court applied these to the instant cases and found that the situation in Eisentrager was very different from this case.105 The court held that the suspension clause has full effect at Guantanamo Bay and may be used by the detainees there, and that MCA is not an adequate statutory substitute.106 Analysis: This case completed the evolution of non-citizen rights outside the territory of the United States. It established several key points. First, even though the U.S. does not have de

98 99

U.S. Const. art. I, 9, cl. 2. Id. at 739. 100 See id. at 739-55. 101 Id. at 754-55. 102 Id. 103 Id. at 755. 104 Id. at 766. 105 See id. at 766-71. 106 Id. at 771. 18

jure sovereignty over Guantanamo Bay, it does have de facto sovereignty, which is sufficient for the Suspension Clause to apply there. Second, the case established that detainees with enemy combatant status can still use the privilege from the writ. Therefore, detainees held at Guantanamo Bay have the privilege of habeas corpus as a matter of constitutional law. Kiyembra Facts: In Kiyembra v. Obama,107 seventeen petitioners, who were once considered enemy combatants, had been vindicated of the title.108 They were seeking habeas corpus relief to be released into the United States.109 The District Court granted relief, but the D.C. Circuit reversed holding that this was a question for the Executive branch.110 In doing so, the court stated that Guantanamo was outside the territory of the United States, and a habeas corpus claim would be treated differently than if the alien was inside the country.111 Judge Rogers concurred saying that in Boumediene, 128 S.Ct. at 2257, the Supreme Court rejected this territorial rationale as to Guantanamo, holding that detainees who were brought there involuntarily were entitled under the Constitution to seek habeas relief because [i]n every practical sense Guantanamo is not abroad; it is within the constant jurisdiction [and plenary control] of the United States.112 The Court responded to this saying that Boumediene recognized the Supreme Court had never [previously] extended any constitutional rights to aliens detained outside the United States, and therefore Boumediene is limited to the Suspension Clause.113

107 108

555 F.3d 1022 (D.C. Cir. 2009). Id. at 1024. 109 Id. at 1023. 110 See id. 111 Id. at 1032. 112 Id. at 1038 (quoting Boumediene at 769). 113 Id. at 1032 (quoting Boumediene at 770). 19

Analysis: It would seem that if Boumediene was willing to extend habeas corpus rights to current enemy combatants detained in Guantanamo, then a habeas corpus decision for former enemy combatants would not be a difficult case. However, in this case, the D.C. Circuit Court of Appeals reversed the District Courts grant of the motion. This case is the first major case in the post 9/11 habeas corpus series of cases to limit rather than expand rights of non-citizens. However, in one sense, the habeas claim was not denied in this case as a right, it was denied on the merits, and therefore, this case did not limit Boumediene. Instead, it applied it. In Boumediene, the court was careful to say and emphasize that the decision does not address the content of the law that governs petitioners' detention. That is a matter yet to be determined.114 In this case, the decision hinged on the habeas corpus petition. The petition was denied because the content of the law is a political question, unreviewable by the court so long as the detainees remain outside the United States. However, habeas corpus was not denied as a matter of right. Sale Revisited This line of cases begs several important questions. If non-citizen enemy combatants are entitled to the constitutional privilege of habeas corpus, what other constitutional protections are they entitled to? For example, how would Sale have been a different case if it happened today? In light of Boumediene, what protections could the United States exercise to protect it from another mass migration from an oppressive regime such as the one in Sale? First, the U.S. Supreme Court cases show a clear, new progression. There are two approaches to understand this progression. Either the court is recognizing more rights of noncitizens held outside of U.S. borders, or the Court is expanding the reach of the Constitution to include functional equivalents of U.S. territory, such as the base in Guantanamo. In other words,

114

Boumediene at 798. 20

is the expansion in the people with rights or the places with rights? This is not a simple question to answer, and it was premise behind the debate in Kiembra about the meaning of the holding in Boumediene. The concurrence argued that the territory distinctions dont matter, Boumediene gave rights to the non-citizen detainees. The majority argued that the constitutional protections were not extended to non-citizens, the Suspension Clause was simply extended to Guantanamo Bay because Guantanamo is a functional equivalent of territory. I would argue that the holding and spirit of Boumediene are more consistent with the concurrence in Kiyembra, not the majority. However, the culmination of all the precedent cases have also given Guantanamo Bay special rights, and the unique legal situation of Guantanamo Bay gave the Court a process by which to give these non-citizens substantive rights. The previous cases tried to avoid the question of Guantanamos status and relationship with the Constitution. Boumediene attacked it head on, but only in the context of distinguishing this case from Eisentrager. The holding gave the rights to the detainees, not to Guantanamo per se, though the holding was limited to Guantanamo. This distinction will be important in answering the question of how Sale would have been decided or reasoned differently. Turning to the Sale decision itself, the case gives a clear baseline for the status of noncitizen rights. In that case, it was not even considered as a question whether there Guantanamo was considered a special territory, it was equivalent to the high seas. If the case were tried for the first time today, it would be argued, reasoned, and decided differently. In Rasul, location took a back seat, the U.S. control was more important: Habeas corpus is heard by the court that has jurisdiction over the jailor. Although the Sale case was not a habeas corpus case, it involved non-citizens being forced to repatriate by the Executive Branch, a similar situation to detainees being held against their will in Rasul. Both of these would not be

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tolerated by citizens. The Rasul case would play an important role in the Sale case today because it would give an extra step of analysis into whether the Executive has the duty to give rights to anyone it controls, irrespective of citizenship. Looking at Hamdi, the case cautioned that, had the detainee been held in Guantanamo or elsewhere, the reasoning would have been different. Therefore, citizen or not, location matters. This case would be used by the government in the hypothetical present-day Sale. Specifically, Hamdi was both a citizen and in the United States, and the Court gave him great protections. Therefore, the Coast Guard cutters and Guantanamo Bay are not entitled to such protections. The counterargument would be that Hamdi did not say that interdictees dont have rights on Guantanamo. Giving constitutional rights to U.S. citizens in the U.S. is an obvious response by the Supreme Court; it does not affect the interdictees in Sale. Hamdan counters with a control argument, like Rasul. In this case the court found that the military commissions violated tenants of international law. Sale was also partially decided in interpreting a treaty that imposed a duty on the country to provide for all people, not just noncitizens, certain rights. Although the laws in Hamdan and Sale are different, the attitude of the court is important. The rights given to non-citizens through international law would be an important consideration in the rights of citizens in the Sale case. Boumediene would only work to cement what Hamdan started. Boumediene gave substantive constitutional rights to non-citizens in Guantanamo. This case would be helpful in two ways: first, it would show that the rights of the interdictees in general can exist within domestic law, both constitutional and statutory. Second, the case would show that Guantanamo Bay is special. The laws and rights that trigger there are not the same as those of international law. If the Sale case was to be tried for the first time today, I believe that the interdictees staying

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at Guantanamo would be entitled to a full interview before being returned to Haiti. Furthermore, even those on Coast Guard cutters may be entitled to fair interviews because they are in the exclusive control of the United States government. So, what about Kiyembra? It appears that the facts of that case would more closely resemble a modern day Sale than any other precedent. However, there are several problems with the case that makes it bad precedent. First, it is a Circuit Court case, so it is not binding on the U.S. Supreme Court. Second, the majority severely misinterpreted Boumediene, as explained above. Therefore, its reasoning is not likely to be accepted by the Court. However, Kiyembra is important in that it gives a preview into how the sweeping decisions of Rasul to Boumediene can enter other areas of the law, and how the courts may work to limit the reach of Boumediene. Kiyembra is essentially an immigration case, though it deals with detainees. It opens the door to the Court to either expand or limit the Boumediene non-citizen rights. I predict that the Court will be compelled to do just that in the near future. Conclusion The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.115 This language from Boumediene is a great way to conclude. The extreme situation of the war on terror has led to the legal creativity of the Executive branch. This compelled the Courts response in a series of cases that define sweeping rights for non-citizens. It took a place of legal ambiguity, like Guantanamo Bay, to define these

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new rights. Now that they exist in the habeas corpus context, it remains to be seen how far courts are willing to stretch these rights.

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