HABEAS CORPUS, JUDICIAL REVIEW, AND
LIMITS ON SECRECY IN DETENTIONS
AT GUANTANAMO
Jonathan Hafetz*
INTRODUCTION
Secrecy has pervaded post-September 11 counter-terrorism detentions. The administration has sought to conceal information about the
individuals it detains, including their names, and to avoid judicial review of their detentions. It has also resisted allowing attorneys access to
detainees and, even when access has been granted, the administration
has sought to significantly restrict that access, including, most recently,
by preventing detainees from telling their lawyers they had been tortured.' Similarly, the methods of interrogation have been concealed,2 as
have the administration's position regarding and legal analysis of permitted techniques. 3 The very existence of CIA-operated offshore prisons
has been shrouded in secrecy and only revealed through government
leaks. 4 Moreover, subsequent investigations have targeted those who
made public information about secret detentions and coercive interrogations, and not the underlying conduct of government officials who ordered or carried out those actions. 5 In addition, the government has
sought to shield itself from liability for allegedly rendering an individual
to a foreign government for torture and other abuse by invoking the
* Litigation Director, Liberty and National Security Project, Brennan Center for Justice at
NYU School of Law.
I See Carol D. Leonnig & Eric Rich, US. Seeks Silence on CIA Prisons, WASH. POST, Nov.
4, 2006 (describing government's attempt to impose restrictions on ability of certain detainees
to reveal "alternative interrogation methods" to their attorneys).
2 See, e.g., Inside the Wire at Gitmo, TIME, June 12, 2005 (describing secret interrogation
log).
3 See, e.g., David Luban, Torture, and the Ticking Bomb, 91 VA. L. REv. 1425, 1452-1462
(2005) (describing secret Office of Legal Counsel memoranda that provided a basis for the use of
coercive interrogation tactics).
4 Dana Priest, Two Dozen Nations Help CIA Fight Terrorism; Secret Facilities,WASH. POST,
Nov. 18, 2005.
5 See, e.g., Jonathan Weisman, GOP Leaders Urge Probe in Prison Leak, WASH. POST, at Al,
Nov. 9. 2005 (describing investigation into disclosure of existence of secret CIA prisons).
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state secrets privilege, claiming that allowing the suit to proceed would
6
jeopardize national security.
This Article examines the role of secrecy 7 in detentions at the
United States naval base at Guantdnamo Bay, Cuba, and the constraints
upon secret detentions by habeas corpus. Paradoxically, Guantdnamo
provides the best window into the constellation of issues surrounding
secrecy and related issues in post-September 11 detentions because more
is known about it than any other post-September 11 detention site.
Since the United States started bringing prisoners to Guantinamo in
January 2002, the base has been transformed, over the continued opposition of the United States government, from a state of near-total secrecy-a "legal black hole" 8-to a quasi-regulated prison that is subject
to significant, if still limited, oversight and legal process. This Article
describes how habeas corpus has helped subject detentions at Guantinamo to legal process and limited the secrecy that was so prevalent
before, even though elements of the previous system remain in place. It
also examines why habeas corpus guarantees a meaningful inquiry into
the factual and legal basis for the detentions, and how habeas review
affects related issues such as access to counsel, detainee transfers for foreign custodians, and the availability of a meaningful remedy where detention is unlawful.
Part I examines the various ways secrecy has contributed to the
establishment of a new detention paradigm at Guantanamo, a system
designed to hold individuals indefinitely outside judicial review, public
scrutiny, and established checks on unlawful detention and coercive
interrogations.
Part II provides a brief overview of the habeas corpus litigation
challenging the Guant~.namo detentions. In particular, it examines the
Supreme Court's decision in Rasul v. Bush, 9 explaining how Rasul both
undermined the administration's asserted basis for these detentions and
prompted their threatened institutionalization through the creation of
ad hoc status review tribunals, which provide the illusion of procedural
safeguards, but actually insulate detentions from meaningful scrutiny.
Part II also examines the significance of the Detainee Treatment Act of
6 EI-Masri v. Tenet, 437 F. Supp. 2d 530, 536 (E.D. Va. 2006).
7 The article uses the term secrecy in its most general sense to signify keeping hidden or
concealed. See MERRIAM-WEBSTER DICTIONARY (entries for "secret" and "secrecy").
8 Johan Steyn, Guantanamo Bay: The Legal Black Hole, 53 INT'L & COMP. L.Q. 1, 1
(2004).
9 542 U.S. 466 (2004).
2006]
HABEAS AFTER RASUL
2005, which, in purporting to strip federal courts of jurisdiction over
habeas petitions, threatens to restore important elements of the preRasul system of detentions at Guantinamo, and of the Military Commissions Act of 2006, which seeks to impose the same limits. In addition, Part II addresses the role of secrecy in the President's military
commissions intended to try those detained for war crimes, and the
Supreme Court's recent decision in Hamdan v. Rumsfeld' ° invalidating
those commissions.
Part III argues that habeas corpus povides important limits on detentions at Guantanamo and the Executive Branch's ability to confine
individuals in secret without external oversight. Specifically, it looks at
how habeas corpus impacts access to counsel, the right to challenge the
factual as well as legal basis for a prisoner's detention, judicial review of
the transfer of detainees to foreign custody, and the availability of a
remedy where the detention is deemed unlawful. In each instance, Part
III explains how the model of review provided by the Detainee Treatment Act and Military Commissions Act would erode safeguards against
secret detentions provided by habeas corpus and suggests the need to
ensure that there continues to be habeas jurisdiction.
I.
GUANTANAMO AND THE MODALITIES OF SECRECY
When the United States first brought prisoners to Guantinamo in
early 2002, secrecy pervaded virtually every aspect of the detentions
there. The administration, for example, refused to release the names of
any detainees until ordered to do so by a court in early 2006, in a suit
under the Freedom of Information Act ("FOIA"). 1 1 While high-level
officials labeled the detainees "the worst of the worst,"' 12 the administration refused to publicize the basis for the detentions until it was forced
to respond to habeas corpus petitions demanding that it defend the detentions in court. Even then, much information remained secret, and
the transcript that was disclosed to detainees and the public was from a
proceeding that lacked basic elements of due process. 13
10
126 S. Ct. 2749, 2795-96 (2006).
11 Associated Press v. Dep't of Defense, 410 F. Supp. 2d 147, 158 (S.D.N.Y. 2006).
12 Neil A. Lewis & Eric Schmitt, Cuba Detentions May Last Years, N.Y. TIMES, Feb. 13,
2004, at Al.
13 See In re Guantinamo Detainee Cases, 355 F. Supp. 2d 443 (D.D.C. 2005); infia notes
107-114 and accompanying text.
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The administration also sought to conceal the interrogation techniques used at Guantdinamo and to prevent any interference by attorneys or courts with those interrogations. While the President said all
detainees would be treated "humanely," he also maintained that the
United States was not bound by any provisions of domestic or international law, including the Geneva Conventions. " The President further
determined that members of the Taliban who had fought against the
United States were not entitled to prisoner of war status because they
were unlawful combatants. In addition, he determined that the minimum standards of treatment set forth in Common Article 3 of the Geneva Conventions did not apply to Guantinamo detainees because they
were unlawful combatants-a position the Supreme Court rejected in
Hamdan v. Rumsfeld."5 By denying prisoners at Guantinamo the protections of international humanitarian law, the administration created a
legal black hole in which secrecy in detentions and interrogations could
take root and spread without limits.
The implications of creating a lawless enclave at Guantinamo became clearer in June 2004, just over a month after the revelations of
torture and sexual abuse at Abu Ghraib, when several memoranda
penned by the Justice Department's Office of Legal Counsel were publicly leaked.' 6 As Joseph Margulies explained, these memos provided "a
blueprint for the creation of a prison beyond the law.' 7 One memo
prepared by John Yoo and Patrick Philbin, then both high-level attorneys in the Justice Department, suggested that habeas corpus would not
extend to prisoners at Guantdinamo because they were aliens held
outside sovereign territory; the Supreme Court later rejected precisely
this position in RasuL18 The existence of this memo indicates that
Memorandum from President Bush to the Vice-President and other officials, Feb. 7,
2002, in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB 136 (Karen J. Greenberg &
Joshua L. Dratel eds., 2005) [hereinafter THE TORTURE PAPERS]. Attorney General Alberto R.
Gonzales thereafter further qualified the meaning of "humane" treatment, stating that such
treatment consisted merely of providing food, clothing, shelter, and medical care. Written response of Alberto R. Gonzales to questions posed by Senator Edward M. Kennedy, question
#15, Jan. 2005. See Marty Lederman, Defining Humanely' Down, Part II,Balkanization Blog,
available at http://balkin.blogspot.com/2005-06-12-balkinarchive.html.
15 126 S. Ct. at 2795-96.
16 See generally Luban, supra, note 3, at 1452-1462 (describing how secret legal memoranda
sanctioning the use of coercive interrogation tactics on detainees).
17 JOSEPH MARGULIES, GUANTANAMO AND THE ABUSE OF PRESIDENTIAL POWER 45
(2006).
14
18 Id.
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HABEAS AFTER RASUL
Guantinamo was selected as a prison site deliberately to avoid any judicial intervention into the administration's detention and interrogation
operations.' 9 Another Justice Department memo provided an exceedingly narrow definition of torture, excluding the infliction of physical
pain short of pain associated with organ failure or death, and further
argued that Executive Branch officials were not subject to the federal
criminal statute prohibiting torture2° for conduct committed in the exercise of the President's authority as Commander-in-Chief. 2' A subsequent memo written for the Department of Defense by a Judge
Advocate General legal advisor at Guantinamo, and also leaked to the
press, approved a list of coercive interrogation techniques designed to
break a high-level al Qaeda suspect named Mohammed al-Qahtani2
In addition, FBI documents detailing the use of interrogation techniques at Guantinamo were made public through a suit brought under
the FOIA.2 3 All of this information was meant to remain secret. Indeed, one official described the logs detailing al-Qahtani's interrogation
as the type of documents "that were never meant to leave [Guantinamo]. '' 24 And additional documents regarding CIA interrogation
methods and the establishment of detention. facilities outside the United
States still remain secret.25
A lynchpin of secrecy at Guantinamo was the administration's refusal to defend its detention decisions in court. The administration ini19 Memorandum for William J.Haynes, 1I, General Counsel, Department of Defense, from
Patrick F. Philbin & John C. Yoo (Dec. 28, 2001), reprinted in THE TORTURE PAPERS, supra
note 14, at 37.
20 18 U.S.C. § 2340A (2006).
21 Memorandum from John C. Yoo, Deputy Assistant Attorney Gen., U.S. Dep't of Justice
Office of Legal Counsel to Alberto R. Gonzalez, Counsel to the President (Aug. 1, 2002), in
THE TORTURE PAPERS, supra note 14, at 172, 176 (determining that infliction of pain constitutes torture, for purposes of Section 2340A, only if it is as severe as that accompanying "death,
organ failure, or serious impairment of bodily functions").
22 See THE TORTURE PAPERS, supra note 14, at 223-28. Those techniques included sleep
deprivation, prolonged isolation, not being allowed access to a restroom, and being made to
"bark like a dog." See Adam Zagorin & Michael Duffy, "Inside the Interrogation of Detainee
063," TIME, June 12, 2005. The interrogation log is available at http://www.time.com/time/
2006/log/log.pdf.
23 These documents are available at http://aclu.org/torturefoia.
24 Zagorin & Duffy, supra note 22.
25 See, e.g., ACLU v. Dep't of Defense, 389 F. Supp. 2d 547, 564-65 (S.D.N.Y. 2005)
(upholding government claim that memorandum specifying interrogation methods that CIA
may use against top al Qaeda members, and directive signed by President Bush granting CIA
authority to set up detention facilities outside the United States and/or outlining interrogation
methods that may be used against detainees, are exempt from disclosure under FOIA).
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[
tially maintained that no federal court could entertain a legal challenge
on behalf of a Guantinamo detainee, a position that two lower courts
upheld.26 While the Supreme Court rejected that position in Rasul v.
Bush,27 the administration subsequently sought to minimize the scope of
any review and maintain secrecy over Guantinamo detentions to the
maximum extent possible, first through the creation of ad hoc status
tribunals that sought to avert district court habeas review of the basis for
the detentions, and, most recently, through the passage of court-stripping legislation.
Secrecy also played a significant role in the proposed system of
military commissions established by the President in November 200128
to try suspected terrorists of war crimes. The commissions permitted
the use of multiple hearsay and anonymous witnesses,2 9 thus opening
the door to the introduction of unexamined interrogation reports from
Guantfnamo and Bagram Air Base in Afghanistan, 30 as well as from
CIA-operated secret prisons or "black sites," 3 1 all places where the abuse
of prisoners has been documented. 32 The commissions also allowed the
exclusion of the defendant and his civilian defense counsel from the
court where "protected information" is introduced,3 3 a term expansively
defined to include information "concerning intelligence and law enforcement sources, methods, or activities," 34 or "other national security
interests, "M and which would allow for unexamined hearsay statements
26
Al Odah v. United States, 321 F. 3d 1134, 1144-45 (D.C. Cit. 2003); Rasul v. Bush, 215
F. Supp. 2d 55, 56 (D.D.C. 2002).
27
542 U.S. 466, 484 (2004).
See Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, § 2(a)(1), 66 Fed. Reg. 57833, 57833 (Nov. 13, 2001) (authorizing trial by military commission of non-citizens suspected of war crimes and other offense).
28
29 SERRIN TURNER &
STEPHEN J.
SCHULHOFER, THE SECRECY PROBLEM IN TERRORISM
TRIAiS 66 (Report of Brennan Center for Justice at NYU School of Law) (2005) (citing 32
C.F.RI
30
§ 9.6(d)(2)(iv)).
Id. at 66 (describing government's motions to introduce evidence in military commission
of Salim Hamdan).
31 Dana Priest, Foreign Network at Front of CIA's Terror Fight; Joint Facilitiesin Two Dozen
Countries Account for Bulk ofAgency' Post 9-11 Successes, WASH. POST, Nov. 18, 2005, at Al.
32 See, e.g., Neil A. Lewis, Fresh Details Emerge on Harsh Methods at Guantanamo, N.Y.
TIMES, Jan. 1, 2005, at All; Carlotta Gall, Rights Group Reports Afghanistan Torture, N.Y.
TIMES, Dec. 19, 2005, at A14; Douglas Jehl, Report Warned CIA. on Tactics in Interrogation,
N.Y. TIMES, Nov. 9, 2005, at Al.
33 32 C.F.R. § 9.6(d)(5).
34 Id. § 9.6(d)(5)(i)(D).
35 Id § 9.6(d)(5)(i)(E).
HABEAS AFTER RASUL
2006]
from custodial interrogations of other detainees. 36 The Supreme Court
struck down the military commissions in Hamdan v. Rumsfeld,37 finding
that their admission of multiple hearsay and other forms of evidence
generally prohibited on grounds of unreliability and exclusion of the
defendant from his own trial violated the Uniform Code of Military
Justice 38 and the Geneva Conventions.3 9 Congress, however, subsequently enacted new legislation establishing military commissions which
suffer from many of the same flaws as the commissions the Supreme
Court invalidated, including limiting a defendant's access to exculpatory
evidence;4 ° permitting the use of evidence gained by cruel, inhuman,
and degrading treatment committed;4 1 and shielding the CIA's abusive
interrogation practices from scrutiny by allowing them to be classified as
"sources, methods, or activities.""
Secrecy at Guantinamo rested on, and remained inextricable from,
two overarching legal claims. First, the administration maintained that
Guantfinamo detainees were not entitled to any protections under domestic or international law. Because the detainees were aliens held
outside the United States, it argued, they were not protected by the
Constitution and laws of the United States. 4 3 Further, the administration maintained that Guantainamo detainees were not protected by the
Geneva Conventions. 44 Specifically, it argued that the Geneva Conventions did not apply to the conflict with al Qaeda, and, while they applied to the conflict with the Taliban in Afghanistan, the President had
categorically (and conclusively) determined that no Taliban members
could claim prisoner of war status under the Third Geneva Convention, 4 5 notwithstanding the Convention's requirement that a prisoner's
36
See Note, Secret Evidence in the War on Terror, 118
HARV.
L. REV. 1962, 1971-73 (2005)
(describing use of secret evidence under military commission procedures).
37 126 S. Ct. 2749 (2006).
38
Id. at 2793.
39 Id.
40 MCA, § 3 (to be codified at 10 U.S.C. § 949j(d)).
41 Id. (to be codified at 10 U.S.C. § 948(r)) (permitting such evidence if obtained before the
passage of the Detainee Treatment Act of 2005).
42 Id. (to be codified at 10 U.S.C. § 949(d)).
43 See, e.g., Brief for Respondents at 13, Nos. 03-334, 03-343, Rasul v. Bush, 2004 WL
425739 (U.S. Sup. Ct. Mar. 3, 2004).
44 See supra notes 14-15 and accompanying text.
45 George W. Bush, "Humane Treatment of al Qaeda and Taliban Detainees," (Feb. 7,
2002), in THE
TORTURE PAPERS,
supra note 14, at 134-35. The President also determined that
neither al Qaeda nor Taliban detainees were protected by Common Article 3 of the Geneva
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status be determined by a competent tribunal. 46 As "unlawful combatants," therefore, the detainees could not claim any legal protections.
Thus, there were no substantive limits on the Executive's power to detain nor, in turn, any legal constraints on keeping those detentionsand interrogations-secret.
Second, as noted above, the administration argued that Guantinamo detainees could not invoke the jurisdiction of the federal courts.
Specifically, it maintained that, during wartime, courts could not entertain habeas petitions of alien enemies held outside the sovereign territory of the United States, even though the United States had long
exercised exclusive jurisdiction and control there.4 7 Thus, under the administration's view, no court could review the basis for a Guantinamo
prisoner's detention. As a result, not only would the lawfulness of a
prisoner's confinement remain insulated from judicial inquiry, but the
detentions themselves would remain largely beyond public scrutiny and
judicial oversight.
Detentions at Guantinamo, of course, were not isolated events but
were part of a broader pattern of secrecy. In the United States, noncitizens arrested in sweeps after September 11 were detained in secret
initially without charge and then based on routine immigration violations. These individuals were 'detained for prolonged periods of time
and tried in secret deportation hearings. 48 The government's refusal to
release the names of the detainees charged with immigration violations
was upheld by a court of appeals. 49 Courts maintained that disclosing
information obtained during the immigration investigations would
jeopardize national security.5 ° These detentions represent a more limConventions, id, which prohibits "outrages upon personal dignity, in particular humiliating
and degrading treatment."
46 Geneva Convention (III) Relative to the Treatment of Prisoners of War of Aug 12, 1949,
art. 5, adopted Aug. 12, 1,949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
47 Rasul v. Bush, 542 U.S. 466, 475 (2004).
48 Compare Detroit Free Press v. Ashcroft, 303 F.3d 681, 710 (6th Cit. 2002) (finding secret
deportation hearings violate the First Amendment), with North Jersey Media v. Ashcroft, 308
F.3d 198, 202 (3d Cir. 2002) (upholding secret deportation hearings). See also Tracy L. Conn,
The Use of Secret Evidence by Government Lawyers: Balancing Defendants' Rights with National
Security Concerns, 52 CLEV. ST. L. REv. 571 (2004) (describing increased use of secret evidence
in immigration cases after September 11).
49 Center for National Security Studies v. U.S. Dep't of Justice, 331 F.3d 918, 920 (D.C.
Cir. 2003).
50 Id. at 928 ("A complete list of names informing terrorists of every suspect detained by the
government at any point during the September II investigation . . . could allow terrorists to
better evade the ongoing investigation and more easily formulate or revise counter-efforts."); see
HABEAS AFTER RASUL
2006]
ited form of the type of secret, preventive detention scheme established
at Guantinamo. 5 1 In addition, the administration has held three individuals in the United States as "enemy combatants," 52 where they were
subjected to incommunicado detention, and numerous individuals in secret, CIA-run prisons 53 and at Bagram Air Base. 54 While these detentions differ in numerous aspects, they reflect a common impulse to
create a system of detention and interrogation beyond judicial review
and public scrutiny.
In short, the United States largely succeeded in establishing a system of unreviewable, and essentially secret, detention at Guantinamo
before the Supreme Court's 2004 decision in Rasul v. Bush. 55 In Rasul,
the Court held that the detainees could seek review of their detention
through habeas corpus, 5 6 opening the door to legal challenges by the
prisoners and to ancillary developments such as access to counsel.
Under Rasul, the system of secrecy at Guantanamo could not survive, at
least not as it had been before. Yet, Rasul also prompted fierce resistance
by the administration, which has helped to maintain a significant degree
of secrecy. In particular, the administration sought to limit habeas review by creating a military status tribunal, the Combatant Status Review
Tribunal, which effectively institutionalized central components of the
detention system at Guantinamo. Part II describes the Court's decision
in Rasul and these subsequent developments.
II.
HABEAS CoRPus LITIGATION AT GUANTANAMO
Before considering the significance of the Guantinamo detainee
habeas litigation, it is worth revisiting briefly the pre-Rasul legal landscape and the major developments that followed the Supreme Court's
also David E. Pozen, The Mosaic Theory, National Security, and the Freedom of Info rmation Act,
115 YALE L.J. 628, 658-63 (2005) (explaining government's use of mosaic theory to resist disclosure of information about immigration detentions after September 11).
51 See generally MARGULIES, supra note 17, at 23-24.
52 See Rumsfeld v. Padilla, 542 U.S. 426, 431 (2004); Hamdi v. Rumsfeld, 542 U.S. 507,
509 (2004); al-Marri v. Hanft, 378 F. Supp. 2d 673, 674 (D. S.C. 2005).
53 See, e.g., Priest, supra, note 4; David Johnston, CLA. Tells of Bush's Directive on the Handling of Detainees, N.Y. TIMEs, Nov. 15, 2006 (reporting that CIA acknowledged existence of a
directive signed by President Bush granting CIA authority to establish detention facilities outside
the United States and outlining interrogation methods that may be used against detainees).
54 See, e.g., Tim Golden & Eric Schmitt, A GrowingAfghan Prison Rivals Bleak Guantanamo,
N.Y. TIMES, Feb. 26, 2006 (describing expansion of prison at Bagram Air Base).
55 542 U.S. 466 (2004).
56 Id. at 483-84.
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decision in Rasul. Before Rasul, the administration maintained that federal courts lacked jurisdiction over habeas petitions filed on behalf of
Guantinamo detainees, and thus could not review the lawfulness of the
prisoners' confinement. No attorneys had access to the base, no court
exercised any review over detentions and interrogations, and the public
had virtually no information about Guantdnamo other than government
statements and reports.
A.
Habeas Litigation before Rasul
The first Guantinamo-related habeas corpus petitions were filed in
Washington, D.C. in 2002 on behalf of a handful of detainees by family
members acting as their next friends. 57 The assertion of next friend
standing has a long history in habeas cases, and has traditionally been
58
employed when a prisoner could not gain access to the courts himself,
for example, because of a mental disability. At Guantnamo, detainees
could not file petitions on their own behalf because they had no access
to the courts or to the outside world. Thus, the use of next friend
standing invoked the most elemental attribute of habeas-a check on
the executive power to detain.
The district court dismissed those first habeas petitions for lack of
jurisdiction, 59 and the Court of Appeals for the District of Columbia
Circuit affirmed. 60 The court of appeals held that because the detainees
were non-citizens captured and held outside the United States, they had
"no constitutional rights, under the due process clause or otherwise. '6 1
Since the detainees lacked constitutional rights, the court concluded,
they were not entitled to habeas relief, and they could not invoke the
jurisdiction of the federal courts to test the lawfulness of their
confinement.6 2
The court of appeals relied principally on Johnson v. Eisentrager.
In Eisentrager,habeas petitions had been filed by German nationals, cap57
58
Rasul v. Bush, 215 F. Supp. 2d 55, 57 (D.D.C. 2002).
See Whitmore v. Arkansas, 495 U.S. 149, 163-64 (1990) (next friend standing requires
showing inaccessibility, mental incompetence or other disability that prevents real party in interest from bringing the petition himself and showing next friend is truly dedicated to best interests
of person on whose behalf he seeks to litigate).
59 Rasul, 215 F. Supp. 2d at 72-73.
60 A] Odah v. United States, 321 F.3d 1134, 1145 (D.C. Cir. 2003).
61 People's Mojahedin Org. v. Dep't of State, 182 F.3d 17, 22 (D.C. Cir. 1999).
62 321 F.3d at 1142.
63 339 U.S. 763 (1950).
2006]
HABEAS AFTER RASUL
tured in China during World War II, who had been tried and convicted
by a military commission and imprisoned in Landsberg prison in Germany, then under Allied command. A divided Supreme Court rejected
64
the petitioners' claims, finding they were not entitled to habeas relief.
The court of appeals acknowledged that the Guantinamo detainees differed from the Eisentragerprisoners in that the latter were admitted enemy aliens, whereas the Guantinamo detainees denied they had ever
engaged in hostilities against the United States or its allies. 65 The court
of appeals, nevertheless, found the Guantdinamo detainees sufficiently
similar to the Eisentrager prisoners because both cases involved aliens
captured during military operations and held outside the sovereign
United States by the military.6 6 The court's jurisdictional analysis
flowed from those facts.
The court also rejected the petitioners' assertion that the district
court should have made threshold factual determinations regarding their
enemy status before dismissing their petitions, even though the Eisentrager Court had considered (and rejected) the prisoners' claims on the
merits. 67 The court of appeals avoided any discussion of the implications of its decision: that dismissal of the habeas petitions for lack of
jurisdiction sanctioned an unreviewable and secret system of indefinite
executive detention.
In Rasul v. Bush,68 the Supreme Court reversed the decision of the
court of appeals. 69 The Court rejected the government's reliance on
Eisentrageron two principal grounds. First, it found that the statutory
predicate for Eisentragerhad since been overruled by Braden v. 30th Judicial Circuit of Kentucky. 70 Eisentrager, the Rasul Court found, had
been based on the holding two years earlier in Ahrens v. Clark,71 which
construed the habeas statute to require the petitioner's presence within
the territorial jurisdiction of a federal district court. 72 But Braden had
subsequently overturned Ahrens in holding that "the prisoner's presence
within the territorial jurisdiction of the district court is not 'an invaria64
65
66
67
68
69
70
71
72
Id. at 781.
Al Odah, 321 F.3d at 1139-1140.
Id. at 1140.
Id. at 1141-42.
542 U.S. 466 (2004).
Id. at 484.
410 U.S. 484 (1973).
335 U.S. 188 (1948).
Id. at 192.
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ble prerequisite' to .the exercise of district court jurisdiction under the
federal habeas statute." 73 Rather, as the Court concluded in Rasul, Braden meant that a district court could exercise habeas jurisdiction "as
74 Since the
long as 'the custodian can be reached by service of process.' ,,
habeas petition acts on the respondent, the petitioner's location outside
the territorial jurisdiction of a district does not provide a basis for unreviewable detention under the habeas statute.
The Court also distinguished Eisentrager on its facts75 by noting
that the Guantdinamo detainees differed from the Eisentragerprisoners
in the following "important respects" 76: they were not nationals of countries at war with the United States; denied that they had engaged in or
plotted acts of aggression against the United States; had not been provided any access to a tribunal, let alone charged with an offense; and
were imprisoned in territory over which the United States had long exercised complete jurisdiction and control. 77 In his concurring opinion,
Justice Kennedy similarly distinguished detentions at Guantinamo from
those in Eisentragerby pointing to the nature and extent of U.S. control
of Guantfinamo and the absence of any underlying legal process to determine the detainees' status. 78 While Justice Kennedy acknowledged
that there is "a realm of political authority over military affairs where the
judicial power may not enter," 79 that realm did not include a place like
Guantdnamo. Justice Kennedy's opinion in Rasul rejects the proposition that the United States may operate a secret, unreviewable detention
system in territory under exclusive U.S. jurisdiction and control.
Further, the Court suggested in Rasul that detentions at Guantinamo were subject to the constraints of the Due Process Clause. In an
important footnote,80 the Court stated that the
[p] etitioners' allegations-that, although they have engaged neither in
combat nor in acts of terrorism against the United States, they have
Rasul, 542 U.S. at 478 (quoting Braden, 410 U.S. at 494).
Id. at 479 (quoting Braden, 410 U.S. at 494-95).
75 Id. at 475-76.
73
74
76
77
78
Id at 476.
Id.
Id. at 487-88 (Kennedy, J., concurring).
79 Id
80
at 487.
The meaning of this footnote has been the subject of significant discussion. See, e.g.,
Elizabeth A. Wilson, The War on Terrorism and "The Water's Edge"- Sovereignty, "TerritorialJurisdiction, "and the Reach of the U.S. Constitution in the Guantdnamo DetaineeLitigation, 8 U. PA.
J. CONST. L. 165 (2006).
2006]
HABEAS AFTER RASUL
been held in executive detention for more than two years in territory
subject to the long-term, exclusive jurisdiction and control of the
United States, without access to counsel and without being charged
with any wrongdoing-unquestionably describe 'custody in violation
of the Constitution or laws or treaties of the United States.'8
Significantly, the Court cited Justice Kennedy's concurring opinion in
United States v. Verdugo-Urquidez82 and the cases cited therein.8 3 Those
cases include Justice Harlan's concurring opinion in Reid v. Covert,8 4
which supports a contextual approach to determining whether provisions of the Constitution apply abroad, assessing whether applying a
particular constitutional provision would be "impracticable or anomalous" in a given set of circumstances. 8 5 As Justice Kennedy's concurrence in Verdugo-Urquidez and footnote 15 of Rasul suggest, the
principal constitutional right at issue in the Guantinamo detainee litigation-due process-is fundamental, and there would be nothing impracticable or anomalous in extending that right to Guantinamo given
the nature and extent of U.S. control there, even though the U.S. lacked
formal sovereignty over the territory. Thus, as one commentator has
observed, Rasufs determination that Guantinamo is within the "territorial jurisdiction" of a district court is not just a narrow holding under
the federal habeas statute, but the basis fordetrrmining that due process
applies to prisoners detained there.86
While secrecy was never explicitly discussed in Rasul, it arguably
helped shape the Court's approach to the jurisdictional question before
it. As the petitioners and numerous amici made clear, at stake was
whether the President could establish a system of indefinite detention
outside any judicial review in an amorphous and seemingly unlimited
81 Rasul v. Bush, 542 U.S. 478, 483 n.15 (2004).
82
494 U.S. 259 (1990).
83
Rasul, 542 U.S. at 483 n.15.
354 U.S. 1 (1957). In Reid, the Court overturned In re Ross, 140 U.S. 453 (1891), hold-
84
ing that the Constitution applies extraterritorially and bars the court-martial of the civilian wife
of a U.S. servicemember. While Reid involved an American citizen, the plurality opinion did not
specifically limit the case to citizens and Justice Harlan's concurrence focuses on individual
circumstances rather than bright-line rules, such as citizenship or alienage.
85 Reid, 354 U.S. at 74-75 (Harlan, J., concurring). Some lower courts subsequently'held
that constitutional rights protected aliens outside of U.S. sovereign territory, at least where the
U.S. exerted near-exclusive power and control over the territory. See, e.g., Ralpho v. Bell, 569
F.2d 607, 619 (D.C. Cir. 1977) (holding due process applied to inhabitants of Micronesia who
asserted claims under Micronesia Claims Commission).
86 Wilson, supra note 80, at 199.
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global "war on terrorism." Indeed, the attorneys for the petitioners in
Rasul were not allowed to meet or speak with their clients, who did not
even know a case had been brought on their behalf. 87 By contrast,
Eisentragerinvolved the much narrower question of whether aliens who
had admitted to being enemies could be tried for war crimes by the
military, and did not implicate the same concerns about secret detentions and interrogations that a law-free zone at Guantfinamo did. Indeed, nothing about the detention, trial, or treatment of the Eisentrager
prisoners was secret or deliberately designed to evade judicial review.8 8
Rasul, in short, rejected a fundamental basis for secrecy at Guanta'namo: the lack of judicial review over the detentions. The Court's decision was grounded in the federal habeas statute8 9 and the writ's
common law history.9 0 Rasul made clear that jurisdiction does not turn
on the status of the detainee or on formal notions of sovereignty, but
rather on whether the respondent can be reached by the writ and on the
nature and extent of U.S. control over the territory in which the prisoner is held. Detentions at Guantnamo thus became subject to the
core requirement of habeas-that a prisoner have the opportunity to
challenge the lawfulness of his confinement. The next section describes
important developments after Rasul in the habeas corpus litigation that
followed the Supreme Court's decision.
B.
Overview of Post-Rasul Habeas Litigation
After Rasul held that Guantinamo detainees could test by habeas
corpus the lawfulness of their confinement in federal court, 91 the district
court ordered the government to provide habeas attorneys with unmonitored access to their clients. 92 New habeas petitions were filed, and
attorneys began visiting Guantainamo, meeting with detainees, and preparing challenges to their clients' detention.
87
88
See MARGULIES, supra note 17, at 71.
See generally id. at 47 (distinguishing Eisentragerand noting that the detainees there "en-
joyed many of the rights we typically associate with a criminal trial").
89 28 U.S.C. § 2241 (2006).
90 See Rasul v. Bush, 542 U.S. 466, 474-75 (2004) (describing writ's historic purpose and
function).
91 Id. at 484 ("We therefore hold that [28 U.S.C.] § 2241 confers on the District Court
jurisdiction to hear petitioners' habeas corpus challenges to the legality of their detention at the
Guantanamo Bay Naval Base.").
92 Al Odah v. U.S., 346 F. Supp. 2d 1, 15 (2004). The order for access was qualified by a
requirement that the habeas attorneys "treat all information obtained in the course of Petitioners' representation as classified." Id.
2006]
HABEAS AFTER RASUL
The administration, however, immediately acted to limit Rasul and
to pretermit district court habeas review in order to preserve central
elements of the preexisting detention system. Nine days after the Court
handed down Rasul, the Department of Defense issued an order establishing the Combatant Status Review Tribunal ("CSRT") to allow detainees to contest their designation-and detention-as enemy
combatants. 93 The CSRT, however, was was designed to preserve secrecy and forestall any meaningful challenge to a prisoner's detention.
Detainees were denied access to counsel and access to the evidence
against them. 94 The CSRT, moreover, permitted the use of any evidence that is "relevant and helpful to a resolution of the issue before
it,"' 9 including evidence obtained by torture and other coercion. The
CSRT also denied detainees the right to confront and cross-examine the
government's witnesses. In addition, the CSRT also lacked a neutral
decisionmaker. Indeed, to find in favor of a detainee the three-officerpanel that constituted the status tribunal would have to reject the position of their superior officers, who had repeatedly denounced the detainees as "enemy combatants" and "unlawful combatants." As a result
of these basic flaws, detainees could not meaningfully challenge their
detention and the information on which their detention, including the
methods by which it was obtained, remained both untested and secret.
The CSRT's procedural inadequacy was exacerbated by its sweeping definition of "enemy combatant," which subjected a wide range of
individuals to detention based upon association. The Supreme Court
had previously defined an "enemy combatant" as an individual captured
on a battlefield in Afghanistan who was engaged in combat against
American or allied forces. 96 The CSRT, however, expanded the definition of "enemy combatant" to include individuals who were merely "associated" with Taliban or al Qaeda forces,97 even if they never
committed a belligerent act and never directly supported hostilities
93 Deputy Secretary of Defense Paul Wolfowitz, Order Establishing Combatant Status Review Tribunal 1 (January 7, 2004), http://www.defenselink.mil/news/Jul2004/d2004O7O7review
.pdf.
94 In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 468-72 (D.D.C. 2005).
95 Order Establishing Combatant Status Review Tribunal, supra note 93, at 3.
96 Hamdi v. Rumsfeld, 542 U.S. 507, 516 (2004) (defining "enemy combatant" as individuals who were "part of or supporting forces hostile to the United States or coalition partners in
Afghanistan and who engaged in armed conflict against the United States there") (internal
quotation marks omitted).
97 Order Establishing Combatant Status Review Tribunal, supra note 93, at 1 (defining term
"enemy combatant" as "an individual who was part of or supporting Taliban or al Qaeda forces,
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against the United States or its allies. 98 Substantive overbreadth and
procedural inadequacy intersected in significant ways, as individuals
could be detained based on mere association without having the opportunity to review the evidence on which the asserted association was
meant to rest. The results were not surprising: of the 558 CSRT proceedings conducted, all except thirty-eight detainees were found to be
enemy combatants." 99
In response to the habeas petitions, the government made two
principal arguments. First, it contended that, notwithstanding Rasul,
the detainees had no cognizable rights to enforce on habeas, either
under the Constitution or international law. Second, the government
asserted that any rights the detainees had were fully satisfied by the
CSRT.
Thus far, two district courts have considered challenges to the
CSRT, dividing sharply.1"' In Khalid v. Bush, 1 ' District Judge Richard
Leon agreed with the government, ruling that the Guant~inamo detainor associated forces that are engaged in hostilities against the United States or its coalition partners") (emphasis added).
98 Id. As the government conceded, this thoroughly malleable definition would include the
authority to detain the following individuals until the conclusion of the war on terrorism: a
"little old lady in Switzerland who writes checks to what she thinks is a charity that helps
orphans in Afghanistan but . . . really is a front to finance al-Qaeda activities"; "a person who
teaches English - to the son of an al Qaeda member"; and "a journalist who knows the location
of Osama Bin Laden but refuses to disclose it to protect her source." In re Guantanamo Detainee Cases, 355 F. Supp. 2d at 475.
99 News Transcript, Defense Dep't Special Briefing on Combatant Status Review Tribunals,
http://www.defenselink.mil/transcripts/2005/tr20050329-2382.html.
100 A third district court addressed the CSRT in the context of a challenge to the tribunal's
ability to try detainees at Guantdnamo for war crimes. Hamdan v. Rumsfeld, 344 F. Supp. 2d
152, 155 (D.D.C. 2004), rev'd 418 F.3d 33 (D.C. Cir.), rev'd 126 S. Ct. 2749 (2006). Specifically, District Judge James Robertson concluded in Hamdan that the CSRT did not constitute
"a competent tribunal" within the meaning of Article 5 of Third Geneva Convention and
U.S.
Army Regulation 190-8, established to determine whether an individual qualifies as an enemy
prisoner of war. See id. at 161-62 ("There is nothing in this record to suggest that a competent
tribunal has determined that Hamdan is not a prisoner-of-war under the Geneva Conventions."). As a result, Judge Robertson held that the petitioner could not be tried by military
commission, since prisoners of war cannot be tried by military tribunal. Id. at 160. But see
Hamdan, 415 F.3d at 43 (military tribunal constitutes "competent tribunal" before which
Hamdan could raise claim to prisoner of war status). The Supreme Court subsequently found
the military commissions invalid because they violated the Uniform Code of Military Justice and
Common Article 3 of the Geneva Conventions, but declined to address the validity of the
CSRT. Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
l01 355 F. Supp. 2d 311 (D.D.C. 2005). Appeals of the decisions in Khalid and In re Guantdnamo Detainee Cases are pending in the U.S. Court of Appeals for the District of Columbia
Circuit.
2006]
HABEAS AFTER RASUL
ees have no cognizable rights to enforce on habeas under domestic or
international law. Specifically, Judge Leon concluded that Rasul had
addressed only whether federal courts had jurisdiction over challenges by
Guantinamo detainees, and "did not concern itself with whether the
petitioners had any independent constitutional rights.' 0 2 Judge Leon
decided that judicial review was limited to the question of whether the
President possesses legal authority to detain non-citizens as "enemy
combatants" at Guantdnamo. 1 3 He concluded that the President has
that authority,' and, because there was no viable theory under which
the detainees could prevail, he dismissed the petitions without further
action. 10 5 Judge Leon further stated that enforcement of prohibitions
against torture and other abuse should be left entirely to the Executive
Branch. 0 6 Judge Leon did not address the question of whether the detainees possessed any rights under the habeas statute and common law
writ independent from rights under the Fifth Amendment or international law.
By contrast, in In re Guantanamo Detainee Cases,'1 7 District Judge
Joyce Hens Green determined that the detainees had rights under the
Due Process Clause of the Fifth Amendment, 0 8 and that the CSRT
violated those rights because it lacked adequate procedural safeguards' 0 9
and because its definition of "enemy combatant" was overbroad. " 0 Specifically, Judge Green found that the CSRT relied on secret evidence
detainees could not see or challenge,'
denied detainees the assistance
12
of attorneys as counsel," and relied on statements possibly obtained
through torture or other coercion.' 13 The CSRT, she explained, did not
103
Id. at 322.
Id. at 317.
104
Id. at 320 (finding legal authority under Authorization for Use of Military Force, Pub. L.
102
No. 107-40, 115 Stat. 224 (2001)).
105 Id. at 323 (no rights under U.S. Constitution); id.at 327 (no rights under international
treaties); id.at 327-30 (no enforceable rights under international law given President's legal
authority to detain petitioners).
106 Id. at 324-25 n.18 (citing U.S. policy against torture and describing the prosecution by
court-martial of a military reservist for detainee abuse at Abu Ghraib).
107 355 F. Supp. 2d 443 (D.D.C. 2005).
108 Id. at 465.
109 Id. at 468-74.
110 Id. at 474-78.
'''
112
Id. at 468-72.
Id. at 471-72.
113 Id. at 472-74. The CSRT also denies other safeguards to ensure against detention based
upon coercive interrogation. For example, it allows for indefinite detention without charge,
144
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conduct the minimum due process requirement of "a thorough inquiry
into the accuracy and reliability of statements alleged to have been ob1
tained through torture." 14
Following the decisions by Judges Green and Leon, stays were issued by the district courts in all Guantdinamo detainee cases pending
appellate resolution of Khalid and In re Guantanamo Detainee Cases.
The stays did not affect counsel access to detainees, which continued in
existing cases and in new cases as new habeas petitions were filed. The
stay also did not preclude applications for emergency relief, a category
which would include litigation over detainee transfers and hunger
strikes. Litigation on the merits of the detentions, however, was halted.
While the appeals of the decisions by Judges Green and Leon were
pending in the District of Columbia Circuit, Congress enacted the Detainee Treatment Act of 2005 ("DTA"). 115 The DTA purported to
eliminate habeas corpus jurisdiction over challenges by Guantdinamo detainees and create instead a process of direct review in the Court of
Appeals for the District of Columbia Circuit.116 The DTA limits that
review, however, to challenging whether the determination was consistent with the CSRT's standards and procedures, and whether the use of
those standards and procedures conform to the Constitution and laws of
the United States.1 17 The DTA, at least according to the government,
provides no opportunity for a detainee to present evidence or challenge
the government's evidence in court. 18 It also permits the use of statements obtained through coercion, where deemed probative. 1 9 In addi-
permits the use of hearsay, and does not require disclosure of exculpatory evidence (including
impeachment evidence).
114 Id. at 473; see also id.("[T]he CSRT did not sufficiently consider whether the evidence
upon which the tribunal relied in making the 'enemy combatant' determination was coerced
from the detainees."). Judge Green then described the allegations of torture by individual detain-
ees, id. at 472-73, and the evidence of abuse contained in FBI documents, id.at 474.
116
Pub. L. No. 109-148, 119 Stat. 2680 (2005) ("DTA").
Id. § 1005(e)(ii)(A).
117
Id. § 1005(e)(ii)(C).
118
See The Guantinamo Detainees Supplemental Brief Addressing the Military Commis-
115
sions Act of 2006, at 11 (filed Nov. 1, 2006) (describing government's arguments in Bismullah
v. Rumsfeld, No. 06-1197 (D.C. Cir.)), available at http://www.scotusblog.com/movabletype/
archives/AI%200dah%20supp%201 1-1 .pdf.
119 Id. § 1005(b).
HABEAS AFTER RASUL
2006]
tion, the government has since indicated that access to counsel under
120
the DTA will be significantly constrained.
The DTA's restrictions on habeas corpus were challenged in
Hamdan v. Rumsfeld. 12 1 In Hamdan, the Court found that the DTA
does not eliminate habeas jurisdiction over cases that were pending on
the date of the statute's enactment. While Hamdan addressed a challenge to the validity of the military commissions established to try detainees who had been charged with war crimes, its retroactivity analysis
encompassed the DTA's provisions governing review of CSRT determinations for those detained without charge (the bulk of the detainee
population).
After Hamdan, Congress enacted the the Military Commissions
Act of 2006 ("MCA"), 2 2 which purports to repeal habeas over review
over aliens determined to be "enemy combatants." The District of Columbia Circuit, which is considering the DTA and MCA's effect on the
appeals of the decisions by Judges Leon and Green, has yet to issue an
opinion. And, no district court has yet addressed the DTA or MCA's
impact on its habeas corpus jurisdiction.
In the two-and-one-half years since Rasul was decided, no habeas
case challenging the merits of a detention at Guantfinamo has gone forward to a decision on the merits. No court has held a hearing, heard
any evidence, or assessed the basis for detention. Litigation has proceeded only on discrete issues, such as access to counsel and emergency
challenges, a category that has included the threatened transfer of detainees to foreign custody and access to medical records of detainees
engaged in hunger strikes. Thus, questions about the contours of
habeas review remain. The next Part seeks to address some of these
questions, suggesting how habeas provides important limits on secrecy
in detentions through its guarantee of a judicial inquiry into the lawfulness of a prisoner's confinement. Further, it explains that these protections inhere in the writ itself, and are separate and independent from a
detainee's rights under the Fifth Amendment or other provisions of the
Bill of Rights.
120
See Geri L. Dreiling, Changing the Ground Rules: DOJproposes new limits on lawyer access
to detainees, ABA
JOURNAL
Nov. 3, 2006), available at http://www.abanet.org/journal/redesign/
n7terror.html.
121 126 S. Ct. 2749 (2006).
122 Pub. L. No. 109-366, 7, 120 Stat. 2600 (2006).
146
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AS A CHECK ON SECRET DETENTIONS
AT GUANTANAMO
This Part identifies how habeas corpus provides a multitude of protections against unlawful detention. Specifically, it describes four related aspects of habeas review: access to counsel, the right to an inquiry
into the factual and legal basis for a prisoner's detention, judicial review
of transfers to foreign custodians, and a remedy for unlawful detention.
This Part also explains how legislation eliminating habeas corpus jeopardizes these guarantees and would facilitate the restoration of key elements of the pre-Rasul secrecy that pervaded detentions at Guantinamo.
A.
Access to Counsel
Access to counsel has played an important role in limiting secrecy
at Guantdnamo. Since attorneys representing detainees first gained access to the base in the fall of 2004, they have served as a link between
detainees and the outside world, including the courts and the public,
providing an alternative to the government's account of treatment and
conditions at the prison. Attorney access has also facilitated the dissemination of information challenging the government's asserted basis for a
prisoner's detention. While, as noted above, detainees' legal challenges
have been stalled by the stays district judges imposed imposed after the
Khalid and In re Guantdnamo detainee litigation, information about detentions learned by attorneys has significantly colored public perceptions
of Guantdnamo and undermined the government's contention that the
detainees are unlawful combatants and are treated humanely.
Even after Rasul, the government continued to resist counsel access
at Guantinamo. It maintained that any access was discretionary and
that detainees had no right to counsel under the Constitution, laws, or
treaties of the United States. 12 3 Instead, the government asserted, the
attorney-client relationship was "at the Government's pleasure and discretion" and subject to whatever limits the government "sees fit" in imposing on that relationship.12 4 The government sought to place
restrictions on the detainees' access to counsel by imposing real-time
audio and visual monitoring and by conducting "classification reviews"
of detainees' legal mail and of written materials brought to and from
detainee-attorney meetings. 2 5 It defended the restrictions by arguing
123
124
125
Al Odah v. United States, 346 F. Supp. 2d 1, 2 (D.D.C. 2004).
Id. at 5.
Id. at 9.
20061
HABEAS AFTER RASUL
that recognizing a right to counsel would compromise
security. "'
national
District Judge Colleen Kollar-Kotelly rejected the government's arguments and proposed restrictions in her decision in Al Odah v. United
States. 127 Judge Kollar-Kotelly reached her conclusion based upon principles of habeas law. Because the detainees had the right to challenge
the lawfulness of their confinement through habeas, she reasoned, they
have a right to "careful consideration and plenary processing of their
claims including full opportunity for presentation of the relevant
facts." 128 Judge Kollar-Kotelly relied on post-conviction habeas review
jurisprudence in which courts had fashioned appropriate modes of procedures based on the All Writs Act 129 to develop the factual record necessary to address the issues before it. Because petitioners had the right
to "present the facts surrounding their confinement to the Court," and
because the court had authority to craft the procedures necessary to
make this possible, the court had the authority to appoint counsel to
represent the detainees. 130 Having determined that the detainees had
the right to counsel in pursuing challenges to their detention, Judge
Kollar-Kotelly rejected the government's proposed restrictions on attor-
ney-client communications. 131
The decision in Al Odah set parameters for the protective order
and counsel access procedures that would govern subsequent habeas litigation. 132 Under the compromise framework, counsel obtained unmonitored access to their clients, while counsel's notes and detainee
126
Id.at 9-10 (noting that unmonitored counsel access to detainees would enable the detain-
ees to pass sensitive military information to other terrorists and attorneys might disclose, even
unknowingly, sensitive and classified information to detainees).
127 Id. at 8 (rejecting government's argument that detainees lacked right to counsel); id. at 9
(finding government's "proposed procedures inappropriately
relationship").
128 Harris v. Nelson, 394 U.S. 286, 298 (1969).
burden
[attorney-client]
129 28 U.S.C. § 1651 (2000).
130 Al Odah, 346 F. Supp. 2d at 8; see also Al Joudi v. Bush, 406 F. Supp. 2d 13, 21-22
(D.D.C. 2005) ("[In order to properly represent Petitioners, their counsel must have access to
them, must be able to communicate with them, and must be made aware if their clients are in
such fragile physical condition that their future ability to communicate is in imminent
danger.").
131 Al Odah, 346 F. Supp. 2d at 9.
132 The parameters had originally been set by Judge Joyce Hens Green. See In re Guantnamo
Detainee Cases, 344 F. Supp. 2d 174 (D.D.C. 2004) (entering protective order and procedures
providing for counsel access to detainees).
148
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[
legal mail were subject to classification review only if counsel sought to
33
share them with another attorney or make them public.
The district court's recognition of the detainees' right of access to
counsel marked a significant point in the challenge to detentions at
Guantinamo, underscoring the importance of habeas corpus. The right
of counsel access was predicated on the notion that the detainees had
the right to present facts to challenge the basis for their confinement,
which previously was not subject to review or scrutiny. Counsel access
provided a toehold to resist the government's sweeping and indiscriminate claims of national security, by positing a powerful, rights-based
counter-weight rooted in a long-developed jurisprudence and a court's
exercise of equitable habeas powers. 134 Counsel access, moreover, was
not dependent on whether the detainees had rights under the Due Process Clause but, rather, existed as a core element of habeas review itself.
Counsel access has helped reduce the secrecy surrounding Guantdnamo. Until attorneys traveled to Guantdnamo, information about the
detention center came largely from official government accounts. Once
attorneys started meeting with detainees, however, they provided another source of information about the detainees and the conditions at
the prison. Other than habeas attorneys, no one has met with the detainees except the International Committee for the Red Cross, which
does not, as a matter of policy, make its findings public. Indeed, the
United States rejected the request of the United Nations Special Rapporteur on Torture to meet privately with detainees. 135 It is because of
counsel access gained through habeas litigation that detainee accounts of
their treatment and conditions at Guantdinamo have come to light, pro136
viding evidence in some cases.
The United States government, however, has continued to resist
counsel access in a multitude of ways. For example, the government has
sought to require that attorneys obtain authorization from a detainee
before permitting them to meet with the detainee, arguing that such
133
134
Al Odah, 346 F. Supp. 2d at 13-14.
Id. at 10 (describing exalted status of attorney-client privilege).
135 Carol Rosenberg, U.N. Fact-finders Reject Pentagon Offer to Tour Guantdnamo, MII
HERALD, (Nov. 18, 2005) (describing refusal by U.N. Committee to visit Guantinamo unless
they were granted access to detainees and the opportunity to meet with them privately).
136 Al Joudi v. Bush, 406 F. Supp. 2d 13, 16 n.3 (D.D.C. 2005) (noting that, while detain-
ees' statements recounted by their lawyers are inadmissible, attorneys' personal observations regarding the medical and emotional state of their hunger-striking clients are credible and
admissible).
HABEAS AFTER RASUL
2006]
prior authorization was required under the protective order and counsel
access procedures that govern the Guantinamo litigation. By contrast,
habeas counsel maintained that such authorization was required only
after the conclusion of the second visit with a detainee. The government argued that a detainee could not communicate his request for
counsel through another detainee who already had counsel (and thus
meaningful access to the court). Instead, the government argued that
detainees had to request counsel by writing directly to the court.
In a lengthy opinion detailing the numerous difficulties detainees
face in requesting counsel, a magistrate judge rejected the government's
arguments, finding that the government was placing attorneys "in a Sisyphean quagmire."' 137 The court held that a detainee properly communicated his request for counsel through another detainee. Further, it
noted that the government's system had caused tremendous delay and
hindered counsel access,' 38 citing evidence of the government's failure to
inform detainees of their right to challenge their detention or to assist
them in doing so. 139 This decision thus suggests how the importance of
counsel access on habeas transcends the provision of professional assistance in asserting a challenge to the lawfulness of a prisoner's detention,
providing a check on attempts by the government to limit access to the
courts altogether, a fundamental attribute of a secret detention system
and of Guantinamo before Rasul.
14
140
The model of review proposed under the DTA and MCA, 1
however, threatens to significantly limit counsel access at Guantdnamo.
These acts seek to eliminte habeas corpus, substituting in its place a
direct appeal of a CSRT determination in the court of appeals provided
under the DTA. In response to the first-and only-petition brought
under the DTA, the government has sought to restrict attorney-client
visits and communication. 14 2 The government's argument is predicated
on the notion that the DTA's limited scope review-which does not
137 Adem v. Bush, 425 F. Supp. 2d 7, 14 (D.D.C. 2006).
138 Id. at 15 ("[The Defense Department's] attempts to notify detainees of their right to
challenge their detention have been marginally effective at best").
139 Id
at 15-16; see also id. at 16-17 (citing detainees' claims of Guantanamo authorities'
deception).
140 Pub. L. No. 109-148, 119 Stat. 2680 (2005). See also text accompanying notes 115-119,
supra.
141 Pub. L. No. 109-366,
142
7, 120 Stat. 2600 (2006).
See Geri L. Dreiling, Changing the Ground Rules: DOJproposes new limits on lawyer access
to detainees, ABA
n7terror.html.
JOURNAL
Nov. 3, 2006), available at http://www.abanet.org/journal/redesign/
150
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[
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permit the presentation of evidence-makes counsel access unnecessary.' 4 3 For example, the government has sought to limit the number of
attorney-client visits; prevent attorneys from discussing topics the government designates "protected"; limit correspondence from attorneys;
limit attorney access to the government's evidence; and give the government the right to unilaterally terminate attorney visits and access to classified information. 144 If Congress's repeal of habeas jurisdiction is
sustained, and these restrictions on counsel access imposed, it would
help restore the secrecy that pervaded detentions before Rasul.
B.
Challenging the Factual and Legal Basis for Confinement
As noted above, an important element of secrecy at Guantinamo
has been the attempt to prevent prisoners from challenging the legal and
factual basis for their detention. In Rasul, the Court held that the district courts had jurisdiction under the federal habeas statute to determine the lawfulness of their confinement. Disputes quickly arose,
however, over Rasul's implications for subsequent litigation on the merits and over the meaningand content of habeas corpus jurisdiction itself.
How these issues are decided will affect review of detentions at Guantinamo and openness and accountability in post-September 11 detentions
generally.
Interpretations of Rasul and habeas jurisdiction can be divided
along two related but juridically distinct axes. The first turns on
whether the Supreme Court decided in Rasul that detainees at Guantinamo have cognizable rights to enforce through their habeas petitions,
particularly any rights under the Due Process Clause of the Fifth
Amendment. As noted above, two district judges have divided on that
question.11 5 Judge Green held that the better reading of Rasul was that
detainees had Fifth Amendment rights when challenging their detentions. 4' 6 This determination provided the basis for her subsequent analysis of the CSRT procedures and her holding that those procedures
violated the Constitution because they lacked meaningful safeguards by
denying detainees access to counsel and allowing for the use of secret
evidence, including evidence obtained by torture. 14 7 By contrast, Judge
143
144
145
146
Pub. L. No. 109-148,§ 1005(e)(2), 119 Stat. 2680, 2742 (2005).
Dreiling, supra, note 142.
See supra notes 100-114 and accompanying text.
In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 465 (D.D.C. 2005).
147 Id.
at 468-74.
2006]
HABEAS AFTER RASUL
Leon held that Rasul addressed only the right of detainees to invoke a
district court's jurisdiction under the federal habeas statute, and was
silent on the question of whether they had any underlying constitutional
rights. He then held that the detainees had no such rights, since they
were aliens held outside the sovereign territory of the United States,
limiting his review to whether the President had legal authority to hold
the detainees as "enemy combatants" under the Authorization for Use of
Military Force ("AUMF") 4 8 or the Commander-in-Chief Clause of Article II. Having determined the President properly exercised this authority under the AUMF, Judge Leon concluded that no further inquiry
into the basis for the detentions was proper.
If adopted, Judge Leon's decision would have far-reaching implications for detentions at Guantinamo, effectively restoring, in large measure, the system in place before Rasul. His narrow interpretation of
Rasul limits review to questions of the Executive Branch's legal authority
to detain. To be sure, review requires a statutory or constitutional basis
for the detentions, and encompasses the scope of the "enemy combatant" definition. Review thus provides a check on the breadth of secret
detentions, even if minimal. A district court judge could, for example,
review whether the President had authority under the AUMF to detain
individuals arrested in Bosnia or other locations far from actual combat.
In that respect, habeas review could potentially limit the class of individuals subject to detention at Guant.namo. Yet that review is inherently
limited and ultimately meaningless once a threshold determination has
been made that the President has legal authority to detain those he determines to be enemy combatants. It does not permit any inquiry into
the factual basis for the detention, such as whether an individual in fact
engaged in or supported hostilities against the United States, the definition used by the CSRT to define the term "enemy combatant." In effect, Judge Leon's conception of habeas review would permit judicial
sanction of a system of indefinite detention without any meaningful
inquiry into the factual basis for a prisoner's confinement.
Judge Green's decision in In re Guantanamo Detainee Cases149 differs dramatically in its assessment of due process protections and its view
of the judicial role as a check on unlawful detention. Judge Green's
determination that the Due Process Clause applied to Guantdinamo petitioners, if followed, will ensure that detentions will be evaluated
148 Pub. L. No. 107-40, 115 Stat. 224 (2001).
149
355 F. Supp. 2d 443 (D.D.C. 2005).
152
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[
against an established constitutional norm and jurisprudence. The
CSRT, she concluded, did not satisfy due process because it denied access to counsel and relied on evidence a detainee could not review or
challenge, including evidence obtained by coercion. Thus, unlike Judge
Leon, Judge Green mandated a meaningful inquiry into the factual as
well as legal basis for a prisoner's confinement.
Yet, Judge Green's decision was predicated on the Due Process
Clause, rather than habeas review itself. Judge Green understood Rasul
as providing jurisdiction to review the Guantinamo detainees' claims
(including that their detention violated due process), and, separately, as
addressing the merits, particularly through footnote 15 of the Court's
opinion. 150 She, like Judge Leon, did not examine habeas jurisdiction as
an independent basis for challenging the basis for a prisoner's confinement, whether under the provisions set forth in the federal habeas statute 151 or as established at common law and guaranteed by the
1 52
Suspension Clause as a minimum under the Constitution.
Habeas corpus, as explained next, provides a basis to challenge the
lawfulness of a prisoner's detention separate and independent from any
rights the detainee might have under the Due Process Clause of the
Fifth Amendment. The provision is rooted in the writ's common law
history, incorporated into the Constitution through the Suspension
Clause, and codified under the habeas statute. By guaranteeing an individual the opportunity to challenge the basis for his detention and, in
turn, requiring the government to defend its detention decisions in a
lawful process, the writ provides an irreducible cluster of protections of
individual liberty that transcend narrow conceptions of jurisdiction.
Since its roots in English common law, the writ of habeas corpus
has provided a process for individuals to challenge the factual and legal
basis for their detention. In INS v. St. Cyr, 153 the Supreme Court explained that the Suspension Clause, "at the absolute minimum, protects
the writ as it existed in 1789."' 1 St. Cyr thus stands for the proposition
that, absent a lawful suspension of the writ, an individual in the actual
or constructive custody of the United States is constitutionally entitled
to at least the level of judicial review that would have been available at
150 Id. at 463-64.
151 28 U.S.C. % 2241-55 (2000).
152 U.S. CONST. art. I, § 9, cl.
2.
153
154
533 U.S. 289 (2001).
Id. at 301; see also Felker v. Turpin, 518 U.S. 651, 663-64 (1996).
HABEAS AFTER RASUL
2006]
common law, if not more. 1 55 In describing the scope of this review in
the context of immigration removal decisions,' 56 the Court in St. Cyr
found that the writ historically provided review of pure legal questions
as well as the application of statutes to specific facts. 157 Further, the
Court emphasized that the writ's protections were strongest in cases of
executive detention, 158 a point the Supreme Court would reiterate in
RasuL.159 The Court, however, did not address the habeas review of
factual determinations by Executive Branch officials or of the writ's role
in cases of indefinite detention.
The common law writ of habeas corpus was given explicit statutory
recognition in the Judiciary Act of 1789. The Act granted federal
judges the power to issue writs of habeas corpus to "inquir[e] into the
cause of commitment," where individuals were in custody "under or by
colour of the authority of the United States." 160 Like the Suspension
Clause, the statute preceded the adoption of the Bill of Rights, suggesting that habeas provides some protection against executive detention
that is separate from rights guaranteed under the Fifth Amendment.
While the Judiciary Act did not prescribe procedures for habeas corpus
proceedings, in Ex parte Bollman 16 1 Chief Justice Marshall instructed
courts to look to the common law for the writ's content and
meaning. 162
What then was the scope of protections available at common law
and how does it inform habeas review of Guantdnamo detentions today?
At common law, courts did not simply accept the government's return
155
Felker, 518 U.S. at 663-64 ("W]e assume, for purposes of decision here, that the Suspen-
sion Clause of the Constitution refers to the writ as it exists today, rather than as it existed in
1789.").
156 Specifically, the Court held that a statute preclude judicial review of an administrative
deportation order would raise "serious constitutional problems" under the Suspension Clause,
and thus construed the statute not to deprive federal courts of their habeas review of such
determinations. Id. at 299-300.
157 Id
at 302.
158 See id. at 301 ("At its historical core, the writ of habeas corpus has served as a means of
reviewing the legality of executive detention, and it is in that context that its protections have
been strongest."); see also Paul M. Bator, Finality in CriminalLaw and FederalHabeas Corpusfor
State Prisoners, 76 HAuv. L. REv. 441, 475 (1963) ("[T]he classical function of habeas corpus
was to assure the liberty of subjects against detention by the executive or the military without
any court process at all, not to provide postconviction remedies for prisoners.").
159 542 U.S. 466 (2004).
160 Judiciary Act of 1789, ch. XX, § 14, 1 Stat. 73.
161 8 U.S. (4 Cranch) 75 (1807).
162 Id at 123-24.
154
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to a prisoner's habeas petition; instead, they routinely looked beyond
the return to examine additional evidence submitted by a petitioner and
163
Comto ensure the factual and legal sufficiency of the commitment.
mon law habeas review was available in a variety of contexts, such as the
confinement of the mentally ill, 164 forced servitude, 16 5 military impress16 7
ment,1 66 and others detained without trial.
Similarly, in the United States, the Supreme Court and lower federal courts hewed to this tradition, making clear early on that habeas
afforded prisoners a judicial inquiry into the factual as well as legal basis
for their commitment. In two cases involving pre-trial detention, for
example, the Supreme Court conducted a searching inquiry on habeas
to ensure there was a sufficient factual as well as legal basis for the prisoner's confinement. 16 8 Lower federal courts also conducted examinations of the factual basis for a prisoner's detention in a range of noncriminal confinements on habeas, including by reviewing evidence submitted by the prisoner. 16 9 State judges conducted similar inquiries into
163
Goldswain's Case, (1778) 96 Eng. Rep. 711, 712 (C.P.) ("I do not conceive, that either
the Court or the party are concluded by the return of a habeas corpus, but may plead to it any
special matter necessary to regain his liberty."); Bushell's Case, (1670) 124 Eng. Rep. 1006,
1010 (C.P.) (deeming return insufficient because it lacked "full and manifest" evidence necessary to sustain commitment).
164 R. v. Turlington, (1761) 97 Eng. Rep. 741, 741 (K.B.) (discharging woman from "madhouse" after ordering medical inspection, reviewing doctor's affidavit, and inspecting woman
who "appeared to be absolutely free from the least appearance of insanity").
165 R. v. Delaval, (1763) 97 Eng. Rep. 913, 915-16 (K.B.) (scrutinizing affidavits and concluding that girl had been fraudulently indentured as an apprentice and was being misused as a
prostitute).
166 Goldswain's Case, 96 Eng. Rep. at 712 (judges temporarily discharge impressed sailor,
refusing to "shut their eyes" to facts in petitioner's affidavits showing he was legally exempt from
impressment); Richard Good's Case, (1760) 96 Eng. Rep. 137, 137 (K.B.) (reviewing affidavits
showing petitioner exempt from impressments).
167 Case of the Hottentot Venus, (1810) 104 Eng. Rep. 344, 344-45 (K.B.) (ordering examination of "native of South Africa" to assess whether alien was confined against her will); see
generally R.J. SHRPaE, LAw OF HABEAS CORPus 66-68 (2d ed. 1989) (citing habeas cases involving factual inquiries).
168 See Exparte Bollman, 8 U.S.(4 Cranch) at 125-26 (court "fully examined and attentively
considered" the "testimony on which [the prisoners] were committed" in prisoners' presence in
proceedings stretching over five days, and finding insufficient evidence of treason); Ex parte
Hamilton, 3 U.S. (3 Dall.) 17, 17-18 (1795) (report of decision describing examination of
affidavits submitted by prisoner and witnesses about propriety of prisoner's conduct and Court's
order releasing him on bail).
169 Matter of Peters, M-1215 (D.W. Tenn. Dec. 31, 1827) (conducting detailed factual inquiry into petitioner's state of mind and determining petitioner "enlisted . . . when he was
wholly incapable of transacting business or understanding it by reason of intoxication," thus
invalidating legal basis for commitment), cited in ERIc M. FREEDMAN, HABEAS CoRPus: RE-
20061
HABEAS AFTER RASUL
the factual basis for a commitment. 170 In short, in cases of executive
detention, the scope of habeas review was broad, as prisoners were allowed to challenge all issues relating to the lawfulness of their
confinement. 171
These principles of habeas review extended to alleged enemy aliens,
who could thus challenge the factual basis of their commitment on
habeas to ensure it was within the bounds prescribed by law, including
by submitting evidence to the court. 1 72 Thus, a court could grant
habeas relief if a petitioner contested the government's factual assertions
by demonstrating that "he is not an alien enemy."' 1 73 While the inquiry
may have been narrow, that may be explained by the nature of the enemy alien definition itself, which at common law and by statute in the
United States 74 was narrowly limited to citizens of a nation or foreign
government against which the United States had declared war. As a
result, a habeas court's inquiry into the legality of an alleged enemy
alien's detention required far less fact-finding than, for example, an inquiry under the sweeping and elastic definition of an "enemy combatant" used by the government in the CSRT, which encompasses any
person "part of or supporting Taliban or al Qaeda forces or associated
'1 75
forces that are engaged in hostilities against the United States.'
The exception to this settled practice-habeas review of criminal
convictions-proves the rule that habeas review itself necessarily ensures
a quantum of due process, including a judicial inquiry into the factual
THINKING THE GREAT WRIT OF LIBERTY
28 & 166 n.56 (2001); United States v. Irvine, M-
1184, roll I (C.C.D. Ga. May 8, 1815) (discharging petitioner because, despite having been
given opportunity, detaining officer had failed to provide proof to support statement in his
affidavit that enlistment was based on the necessary parental consent), cited in FREEDMAN, supra,
at 165 n.55; see also Wilson v. Izard, 30 F. Cas. 131, 131 (Cir. Ct. D. N.Y. 1815) (reviewing
petitioners' sworn testimony that they were "alien enemies," but rejecting their claim that this
made them ineligible for military service).
170 See, e.g., State v. Clark, 2 Del. Cas. 578, 580-81 (Del. Ch. 1820) (discharging soldier after
examining his testimony that he was intoxicated at time of enlistment, and his father's testimony
that father did not consent to such enlistment).
171 See Note, Developments in the Law-Federal Habeas Corpus, 83 HARV. L. REV. 1038,
1238 (1970) ("At common law ... an attack on an executive order could raise all issues relating
the legality of executive detention").
172 See, e.g., Three Spanish Sailors' Case, (1779) 96 Eng. Rep. 775, 776 (C.P.) (examining
affidavit detailing facts supporting petitioners' release, but concluding that, "upon their own
shewing," they are alien enemies) (emphasis added); accord R. v. Schiever, (1759) 97 Eng. Rep.
551, 552 (K.B.).
173 Lockington's Case, Bright (N.P.) 269, 298-99 (Pa. 1813) (Brackenridge, J.).
174 See Act of July 6, 1798, ch. 66, § 1, 1 Star. 577.
175 See Order Establishing Combatant Status Review Tribunal, supra note 93.
CARDOZO PUB. LAW, POLICY & ETHICS J.
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[Vol. 5:127
basis of commitment for those detained without trial, particularly cases
of executive confinement. The traditional rule was that prisoners could
not controvert the facts stated in the return to a habeas petition challenging a criminal conviction. 176 The justification for that limited inquiry was that the prisoner had already been convicted at a trial that
provided full due process.177 By ensuring that a prisoner was committed
based on a conviction at trial, habeas thus guaranteed that a minimum
of due process was provided and served its classic function of protecting
against detention without trial. For prisoners detained before trial,
habeas both provided a means of contesting the facts on which the detention was based 1 78 and securing the right to trial. 179 And, as noted
above, individuals detained without charge frequently contested the allegations in the government's return on habeas and received judicial deter180
minations on disputed issues of fact.
The federal habeas statute codifies and reflects the process provided
by habeas at common law to challenge the factual and legal basis for a
prisoner's confinement. Specifically, the statute states that prisoners
176
Dallin H. Oaks, Legal History in the High Court-HabeasCorpus, 64 MICH. L. REV. 451,
453 (1966) (discussing habeas review of post-conviction petitions by prisoners confined pursuant to "the judgment and sentence of a court"); Note, Developments in the Law-FederalHabeas
Corpus, supra note 171, at 1113-14.
177 See, e.g., Crawford v. Washington, 541 U.S. 36, 49 (2004) (common law right to confront and cross-examine witnesses); United States v. Booker, 543 U.S. 220, 230 (2005) (common law right to trial by jury).
178 See, e.g., R. v. Greenwood, 93 Eng. Rep. 1086 (K.B. 1739) (reviewing affidavits asserting
prisoner not at place of robbery, but denying bail); Kirk's Case, 87 Eng. Rep. 760, 760-61 (K.B.
1704) (reviewing affidavits to determine whether defendant eligible for bail "on account of ill
health"; denying relief on the merits) (emphasis in original); Farington's Case, 84 Eng. Rep.
1227 (K.B. 1682) (granting bail based on affidavits "showing good reason for it"); see generally
SHARPE,
supra note 167, at 129-30.
Habeas Corpus Act of 1679, 31 Car. 2, c.2, § 7 (1679) (securing right to speedy trial);
EDwARD COKE, THE SECOND PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 43 (1817
ed.) (prolonged detention without "full and speedy justice" contrary to the basic laws and customs of England).
180 See supra notes 163-167 and accompanying text; see also Oaks, supra note 176, at 454
179
n.20 (facts contested in "most" cases). In 1758, a bill was introduced in Parliament that would
have permitted the habeas petitioner to controvert facts stated in the return. 15 PARLIAMENTARY
HISTORY 871-74 (London, T.C. Hansard 1813). When asked to provide their opinions to the
House of Lords, most of the common law judges maintained that individuals could contest the
government's factual assertions on habeas, including Lord Mansfield, who opposed the bill precisely because he believed that the common law writ already permitted what the bill sought to
achieve. SHARPE, supra note 167, at 66 n.16 (citing opinions of the judges); ROLLIN C. HuRD,
A TREATISE ON THE RIGHT OF PERSONAL LIBERTY, AND ON THE WRIT OF HABEAs CoRPus
259 (1876) (same).
2006]
HABEAS AFTER RASUL
may submit additional evidence to contest the allegations in the government's return' 8 ' and authorizes district judges to conduct evidentiary
hearings. 8 2 The habeas statute further provides that district courts can
take evidence orally or by deposition or, in the court's discretion, by
affidavit.1 8 3 The Supreme Court has explained that habeas corpus petitioners are "entitled to careful consideration and plenary processing of
their claims, including full opportunity for the presentation of the relevant facts."' 8 4 In numerous cases, courts have applied these habeas procedures as the basis for a judicial inquiry into the lawfulness of a
prisoner's confinement. 8 5 In addition, the Supreme Court has made
clear that district courts can grant discovery on habeas to develop the
factual record necessary for adjudicating a challenge to detention. 1 86
While Congress has subsequently limited the ability of courts to conduct evidentiary hearings on habeas in post-conviction cases,' 8 7 it has
not altered judges' traditional fact-finding powers in cases of executive
detention, and could not do so free of the constitutional constraints
imposed by the Suspension Clause.
Thus, courts have looked to habeas corpus as an independent
source of procedural protections in cases challenging post-September 11
"enemy combatant" detentions. In Hamdi v. Rumsfeld,'8 8 for example,
181
28 U.S.C. § 2243 (2006) ("the person detained may, under oath, deny any of the facts set
forth in the return or allege any other material facts").
182 Id.("The court shall summarily hear and determine the facts, and dispose of the matter as
law and justice require.").
183 Id. § 2246.
184 Harris v. Nelson, 394 U.S. 286, 298 (1969).
185 See, e.g., id.at 300 ("At any time in the proceedings, when the court considers that it is
necessary to do so in order that a fair and meaningful evidentiary hearing may be held so that
the court may properly 'dispose of the matter as law and justice require,' . . . it may issue such
writs") (citation omitted); Walker v. Johnston, 312 U.S. 275 (1969) ("[I]f the petition, the
return, and the traverse raise substantial issues of fact it is the petitioner's right to have those
issues heard and determined in the manner the statute prescribes.").
186 See, e.g., Harris, 394 U.S. at 300 (district court empowered to grant discovery on habeas
to enable the petitioner to "secure[e] facts where necessary to accomplish the objective of the
proceedings"); Banks v. Dretke, 540 U.S. 668, 684-85 (2004) (discovery ordered by district
court on habeas yielded exculpatory evidence); see also Fed. R. Civ. P. 81(a)(2) (rules of civil
procedure apply "to proceedings for ... habeas corpus ... to the extent that the practice in such
proceedings is not set forth in statutes of the United States and ... has heretofore conformed to
the practice in civil actions"); Rules Governing § 2254 Cases 1(b) (rules for habeas cases under
28 U.S.C. § 2254 may apply in other habeas corpus cases "at the discretion of the United States
district court").
187 28 U.S.C. § 2254(e) (2006) (limiting availability of evidentiary hearings on habeas); see
also id.§ 2255.
188 542 U.S. 507 (2004).
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[Vol.
Justice O'Connor stated that the habeas statute provided "at least a skeletal outline of the procedures to be afforded a petitioner in federal
habeas review." 8 9 Similarly, in Padilla ex rel. Newman v. Bush,' 90 the
district court concluded that, though the President had legal authority
under the AUMF to hold the petitioner as an "enemy combatant," the
petitioner's "right to present facts is rooted firmly in the statutes that
provide the basis for his [habeas] petition."'' And, in the Guantinamo
detainee litigation, Judge Kollar-Kotelly based her conclusion that petitioners had the right to the assistance of counsel on their underlying
habeas right to present facts and develop the record in challenging the
basis for their confinement.' 92
Congress has now amended the habeas statute twice, first under
the DTA and second under the MCA. 193 The Suspension Clause, however, limits Congress's ability to eliminate the constitutionally mandated
judicial inquiry into the factual and legal basis for executive detention
guaranteed by habeas.' 94 As noted above, the habeas writ provides a
guarantee against unlawful executive detention that is separate from the
protections provided by the Due Process Clause of the Fifth Amendment. 95 Congress, as the Supreme Court has indicated, cannot eliminate habeas corpus to the extent protected by the Suspension Clause
without providing an effective and adequate substitute' 96 that is "commensurate with habeas corpus." Thus, any substitute procedures would
have to afford at least the same cluster of protections available under
189 Id. at 525.
190 233 F. Supp. 2d 564 (S.D.N.Y. 2002), rev'don other grounds sub nom Padilla v. Rumsfeld,
352 F.3d 695 (2d Cir. 2003), rev'd on other grounds by Rumsfeld v. Padilla, 542 U.S. 426
(2004).
191 Id. at 599; see also id. at 600 ("Congress intended that a § 2241 petitioner would be able
to place facts, and issues of fact, before the reviewing court, and it would frustrate the purpose of
the remedy to prevent him from doing so.").
192 See supra notes 127-131 and accompanying text.
193 The Supreme Court has held as a matter of statutory construction that the DTA's elimination of habeas jurisdiction did not apply retroactively to pending cases. Hamdan v. Rumsfeld,
126 S. Ct. 2749, 2762-69 (2006). Although the Court appeared to apply its holding both to the
petitioner's challenge to the military commission and to other habeas petitions challenging detention based on CSRT determinations, the government has since argued that the Court decided
only the former. The application of the DTA, and of the subsequently enacted MCA, to those
habeas challenges to detention without trial is sub judice before the District of Columbia Circuit
in the appeals of the decisions by Judges Green and Leon.
194 Id.
195
196
at 202.
See supra notes 160-186 and accompanying text.
See, e.g., Swain v. Pressley, 430 U.S. 372, 381 (1977).
2006]
HABEAS AFTER RASUL
common law habeas, including the opportunity to test asserted facts and
present evidence at a hearing, a key protection in limiting a system of
secret detention like that in place at Guantinamo before RasuL The
DTA and MCA, however, would create serious constitutional questions
under the Suspension Clause by limiting judicial review to legal challenges to the CSRT procedure itself or to whether those procedures were
followed in a particular case, without any opportunity for a petitioner to
obtain an evidentiary hearing or a judicial determination of disputed
facts. 197
While the stays entered by the district courts pending resolution of
the decisions by Judges Green and Leon have prevented challenges to
the merits of detentions from going forward, existing litigation suggests
the important role of habeas in cabining excessive secrecy at Guantfinamo. To begin with, the government has been forced to respond to
habeas petitions by providing a basis for the prisoners' detention-the
CSRT records. These records themselves have undermined any validity
to the government's sweeping statements about the culpability of the
detainees. According to a report by Seton Hall Law School based upon
records produced in habeas litigation, more than half of the detainees at
Guantinamo never committed any hostile acts against the United States
or its allies and only 8% were characterized as al Qaeda fighters.' 9 8
Moreover, only 5% of the detainees were captured by U.S. forces, while
86% percent were captured by Pakistani or Northern Alliance forces and
handed over to the United States at a time in which the United States
offered large bounties for the capture of enemy soldiers, 99 further underscoring the potential problems with the government's allegations and
thte need for a judicial inquiry into factual basis for the detentions.
In short, the Supreme Court's decision in Rasul that habeas jurisdiction extends to Guantinamo provides a significant and substantive
limit on executive detention. The Court's decision ensures that prisoners can test the validity of their confinement in a lawful process that
includes the ability to deny government assertions, to prevent evidence
and probe the government's allegations, and to obtain judicial resolution
of disputed facts. These procedures, rooted in the common law, provide
197 See DTA, § I101(e)(2); MCA,
§
7.
198 See MARK DENBEAUX & JOSHUA DENBEAUX, Report on Guantinamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data 2, available at http://
law.shu.edu/news/guantanamo-report_final_2_08-06.pdf.
199 Id. at 2-3.
160
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important protection against a system of secret and unreviewable detention. While adequate substitutes for a habeas inquiry could be crafted,
the DTA and MCA, with their limited judicial review of the flawed
CSRT process, fail to provide the constitutional minimum of habeas
review required by the Suspension Clause.
C.
Habeas Review of Transfer to Foreign Custody
Another important aspect of habeas jurisdiction is judicial review
of decisions to transfer Guantinamo detainees to foreign custody. The
United States started releasing prisoners from Guantinamo before the
Supreme Court's decision in Rasul; some were released outright, while
others were transferred to the custody of their own governments.2 °° Until Rasul, however, there was no judicial review of these transfers, nor
any mechanism to ensure public disclosure of and accountability for the
movement of prisoners to and from Guantinamo. Thus, like detentions
and interrogations, transfer was essentially a secret process. After Rasul,
the government continued to maintain that its decisions to transfer detainees, including those with pending habeas petitions, were not subject
to judicial review and could be executed without notifying a detainee's
attorney or the district court where the detainee's petition was pending.
Media reports in early 2005 of a possible mass transfer of detainees
from Guantinamo to foreign custody prompted a wave of litigation
challenging the government's assertion of unfettered and unreviewable
transfer authority. In March 2005, the New York Times reported a Department of Defense proposal to transfer more than half of the remaining detainees (then approximately 540) to prisons in Afghanistan, Saudi
Arabia, and Yemen. 20 1 This story coincided with increasing media accounts of the administration's rendition program, through which the
United States had secretly transferred Guantinamo detainees and other
terrorism suspects to other countries for further detention and coercive
interrogation, including torture. 20 2 Reports by non-government organi200
See Robert M. Chesney, Guantdnamo: The Law ofInternationalTransfers, 40 U. RICH. L.
REv. 657, 661-65 (2004) (providing data on pre- and post-Rasul transfers).
201 Douglas Jehl, Pentagon Seeks to Shift Inmates from Cuba Base, N.Y. TIMEs, Mar. 11,
2005, at Al.
202
See Douglas Jehl & David Johnston, Rule Change Lets CIA. Freely Send Suspects Abroad,
N.Y. TIMES, Mar. 6, 2005, at Al (describing Administration's secret program to transfer detainees to foreign countries including Egypt, Syria, Saudi Arabia, Jordan, and Pakistan, where former
detainees report being brutalized); Rajiv Chandrasekaran & Peter Finn, US. BehindSecret Transfer of Terror Suspects, WASH. POST, Mar. 11, 2002 (describing use of rendition program to utilize
2006]
HABEAS AFTER RASUL
zations similarly described instances of rendition, where individuals were
sent to foreign custody for torture.20 3 Further, an FBI document indicated that one interrogation method under consideration at Guantinamo involved transferring individuals to foreign countries to obtain
further information through coercive measures.20 4
In light of these reports, habeas attorneys filed emergency motions
demanding that advance notice be given to them and to the court before
their client could be transferred from Guantinamo. The motions did
not attempt to block any specific transfer but, rather, sought to preserve
review over the pending habeas petitions (which would be mooted by a
transfer to a foreign government) and over the lawfulness of any transfer
should it occur. The result was to prevent release to freedom but,
rather, transfer to continued custody in a foreign government and possible torture, at least until judicial review could be exercised. The government, by contrast, maintained that detainees lacked any right to advance
notice of their transfer and that there was no basis under which a court
could review or block such transfer.20 5 The motions thus implicated an
important aspect of Guantinamo detentions: the ability to hand over
prisoners to foreign governments, including for further detention and
interrogation, in secret and without judicial review.
By the end of June 2005, the overwhelming majority of district
judges to address the issue had ruled that the government must provide
interrogation tactics prohibited under U.S. law); Jane Mayer, Outsourcing Torture, NEW
YORKER, Feb. 14, 2005 (describing post-9/1 1 expansion of rendition program from small, discrete set of suspects to encompass a "wide and ill-defined population that the Administration
terms 'illegal enemy combatants"'). But see A1-Anazi v. Bush, 370 F. Supp. 2d 188, 190-92
(D.D.C. 2005).
203 See, e.g.,
COMMITTEE ON INTERNATIONAL HUMAN RIGHTS OF THE ASSOCIATION OF
THE BAR OF THE CITY OF NEW YORK &
CENTER FOR HUMAN RIGHTS AND GLOBAL JUSTICE,
TORTURE BY PROXY: INTERNATIONAL AND DOMESTIC LAW APPLICATIONS TO "EXTRAORDI-
NARY RENDITIONS" (Jan. 2005), available at http://www.nycbar.org/Publications/index.htm
(click hyperlink to article) (reporting "extraordinary rendition" of nineteen individuals within
previous year to countries that routinely practice torture during interrogations). But see Al-Anazi,
370 F. Supp. 2d at 190-92.
204 See Marty Lederman, Rendition to Torture, Balkinization, Aug. 6, 2005, availableat http:/
/balkin.blogspot.com/2005/08/rendition-to-torture.html (describing "Category IV" interrogation techniques that were under consideration).
205 The government also claimed that, as a matter of policy, it never transferred a detainee to
a foreign government "where it believe[d] it is more likely than not that [the detainee would] be
tortured." AI-Marri v. Bush, No. Civ.A. 04-2035(GK), 2005 WL 774843, at *2 (D.D.C. Apr.
4, 2005).
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advance notice before transferring prisoners from Guantinamo. 20 6
Courts granted the requested relief based on two potential harms: first,
that the detainees' habeas claims would be extinguished; and second,
that the detainees faced possible torture after transfer. As one district
court noted, transfer to a foreign custodian would obviate a prisoner's
right to "test the legitimacy of [his] executive detention. "207 District
courts also granted relief based on the likelihood of torture, even
though, as one commentator has pointed out, 20 8 those courts did not
specifically analyze the underlying substantive basis for blocking a transfer, such as the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment ("CAT")21 9 or the Geneva
Conventions.2 1 °
Several district courts, however, denied relief. In Al-Anazi v.
Bush,21 ' for example, the district court distinguished between detention
and transfer, maintaining that habeas only provided a basis to challenge
detention.21 2 The court also concluded that there was no evidence to
doubt the government's statements that the United States obtains all
206
Chesney, supra note 200, at 667 (noting that twenty-seven district court decisions had
granted the requested relief, while six decisions denied it). Relief was granted in various forms,
including preliminary injunctions, orders granting advance notice as a condition of granting the
government's motion to stay the case, and orders under the All Writ's Act. See Al-Anazi, 370 F.
Supp. 2d at 192 (listing cases in which relief was granted).
207 AI-Marri, 2005 WL 774843, at *4 (citation omitted); see also Abdah v. Bush, No. Civ.A.
04-1254(HHK), 2005 WL 711814, at *4 (D.D.C. 2005) (affirming court's power to take action necessary to preserve jurisdiction and protect rights of parties before it); Kurnaz v. Bush,
Nos. Civ.04-1135(ESH) & Civ.05-0392(ESH), 2005 WL 839542, at *2 (D.D.C. 2005) (ordering advance notice, because necessary "to preserve the petitioner's right to obtain review of the
legality of his detention").
208 Chesney, supra note 200, at 668.
209 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter CAT], available at http://www.
ohchr.org/english/law/pdf/cat.pdf.
210 See, e.g., Geneva Convention (III) Relative to the Treatment of Prisoners of War, art. 12,
Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (restricting international transfers of prisoners
of war except where receiving state is also a party to the Geneva Conventions and the transferring state is satisfied that the receiving state will uphold the conventions in its treatment of the
transferred prisoner); Geneva Convention (IV) Relative to the Protection of Civilian Persons in
Time of War, art. 45, adopted Aug. 12, 1949, 6 U.S.T.3516, 75 U.N.T.S. 281 (restricting
transfers of aliens located in enemy territory); id. at art. 49 (narrowly restricting transfer of
protected persons located in occupied territory).
211 370 F. Supp. 2d 188.
212 Id. at 194 ("[T]he presence of a sound basis to challenge the legality of one's detention
does not at all imply a sound basis to challenge the legality of one's transfer.") (emphasis in
original).
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assurance necessary under law from the foreign state to ensure the detainee will be treated humanely.21 3 It further determined that there was
no legal basis for ultimately prohibiting a transfer based on fear of torture, even if advance notice were granted.2 14
The various district court decisions on the motions for advance
notice of transfer underscore the significance of habeas jurisdiction in
cabining Executive Branch secrecy. The judicial inquiry, upon a habeas
petition, into the lawfulness of a prisoner's detention encompasses the
potential transfer of that prisoner from the custodian whose detention is
being challenged. The government's suggestion that such a transfer
moots the habeas petition by effectively providing the relief a habeas
petition mistakenly elides transfer and release. While outright release
achieves the relief sought by habeas, a transfer does not, since the transfer itself requires the prisoner's continued custody. That is why, in
other contexts, courts have traditionally exercised habeas review over
21 5
transfers of prisoners from United States custody, as in extradition
and immigration removal 21 6 cases. This habeas review applies even
where the individual is detained overseas.21 7 Further, any transfer of a
prisoner from United States custody must itself be based on some underlying lawful authority since the government lacks free-standing authority to hand individuals over to a foreign power. 2 8 Habeas thus
exists to test whether there is a lawful basis to detain and, in turn, to
transfer a prisoner to a foreign government. This review both ensures
213 Id.; see also id.at i97 ("[T] here is no evidence at all that petitioners are being transferred
for the purpose of torture or in inappropriate collusion with a foreign government.").
214 Id. at 194 (no jurisdiction to review transfer to foreign government under Convention
Against Torture and implementing legislation outside immigration removal context); see also id.
at 194-95 (Rule of Non-Inquiry, precluding review of conditions in receiving country in extradition cases, further counsels against judicial review of the transfer of a Guantinamo detainee).
215 See, e.g., Factor v. Laubenheimer, 290 U.S. 276, 290-91 (1933) (reviewing whether crime
charged is extraditable offense under treaty); Elias v. Ramirez, 215 U.S. 398, 409 (1910) (same);
Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal ofAliens, 98 COLUM L.
REv. 961, 994-1004 (1998) (detailing history of habeas review in extradition cases).
216 See, e.g., INS v. St. Cyr, 533 U.S. 289 (2001) (requiring habeas corpus review over noncitizen's deportation).
217 See, e.g., Wilson v. Gerard, 354 U.S. 524 (1957) (exercising habeas jurisdiction over proposed transfer to Japanese custody of U.S. serviceman detained in Japan).
218 Cf Valentine v. United States, 299 U.S. 5, 9 (1936) ("[I]n the absence of a conventional
or legislative provision, there is no authority vested in any department of government to seize a
fugitive criminal and surrender him to a foreign power."); Holmes v. Laird, 459 F.2d 1211,
1219 n.59 (D.C. Cir. 1972) ("It is certainly the law that the power of the Executive Branch to
invade one's personal liberty by handing him over to a foreign government for criminal proceedings must be traced to the provisions of an applicable treaty.").
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that a transfer is done in accordance with law and that transfer is not
used as a means of circumventing habeas review by continuing the detention through another custodian without legal basis.
The question remains, then, of what substantive limits under domestic or international law apply to the transfer of Guantinamo detainees and whether those limits are judicially enforceable through habeas, a
question this Article does not address. 21 9 Resolution of that question
would turn, for example, on whether detainees could invoke the Fifth
Amendment's prohibition against torture220 and whether the nonrefoulement provision under CAT2 2' and implementing legislation 222 is
enforceable on habeas. At a minimum, however, habeas ensures that a
prisoner's detention and transfer are subject to judicial review, something that did not exist before Rasul and the advent of habeas jurisdiction at Guantanamo.
The DTA and MCA, however, jeopardize judicial review over detainee transfers by eliminating habeas jurisdiction. Specifically, these
acts limit federal court review to the validity of the CSRT's procedures
and findings. Unlike habeas, which provides review of the lawfulness of
a prisoner's detention, including detention-for-transfer, the appellate review provided under the DTA and MCA would be limited to the
CSRT's finding and would not extend to review of a prisoner's transfer
from U.S. custody. If these acts were construed to repeal habeas corpus
jurisdiction over Guantinamo cases, 223 it would help lead to the unaccountable and unreviewable transfer of prisoners to other countries, including for further detention and torture or other abuse. Elimination of
219
220
For an excellent discussion of these issues, see generally Chesney, supra note 200.
Torture is unquestionably prohibited under the Fifth Amendment. See, e.g., Chavez v.
Martinez, 538 U.S. 760, 773 (2003); Rochin v. California, 342 U.S. 165, 172-73 (prohibiting
conduct which "shocks the conscience"). As Robert Chesney notes, every circuit court has
adopted the state-created danger rule, which establishes a substantive due process violation
where the state qua custodian acts affirmatively to increase or create a danger that results in harm
to an individual, though the precise standards governing that rule's application to the context of
Guantinamo detainee transfers are unclear. Chesney, supra, note 200, at 740-42; see also Butera
v. District of Columbia, 235 F. 3d 637, 650 (D.C. Cir. 2001) (finding state-created danger
where government engages in "affirmative conduct . . . to increase or create the danger that
results in harm to the individual").
221 See 1465 U.N.T.S. 85, art. 3(1) ("No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be
in danger of being subjected to torture.").
222 See Foreign Affairs Reform and Restructuring Act of 1998, § 2242 (1998).
223 In Hamdan, the Court ruled that the DTA did not apply to pending cases challenges the
validity of military commissions. 126 S. Ct. at 2766-68.
HABEAS AFTER RASUL
2006]
this critical component of habeas review could raise
under the Suspension Clause by failing to provide
fective substitute for habeas and by precluding all
transfers by the United States to another (in
custodian.
D.
significant questions
an adequate and efjudicial review over
this case, foreign)
The Right to a Remedy for Unlawful Detention
Habeas jurisdiction also provides another important check on detentions at Guantdnamo by guaranteeing an effective remedy for unlawful detention. This issue was squarely presented in a case where the
government continued to detain prisoners even after the government
had abandoned its contention that they were "enemy combatants" and a
district court had found that there was no legal basis to continue holding them.
In Qassim v. Bush,224 the district court addressed a habeas petition
by two Uighur prisoners, who had been detained at Guantlinamo since
2002.225 Although a CSRT had concluded that the two Uighurs
"should no longer be classified as enemy combatants," the government
continued to detain them, explaining that the Uighurs could not be
removed to their home country for fear they would be tortured there. 2
The government, moreover, did not notify the Uighurs counsel or the
court of this finding even after habeas petitions had been filed on their
behalf.22 7 Rather, it was not until the Uighurs' counsel met with the
detainees that they learned of the CSRT finding, at which point counsel
sought their immediate release. 2 28 The government, which could not
find a country willing to accept the detainees, argued that their continued confinement was lawful as part of the Executive's power to "wind
229
up wartime detentions in an orderly fashion."
The district court rejected the government's argument, finding no
basis for the prisoners' continued detention. 23 ' The court, however,
226
407 F. Supp. 2d 198 (D.D.C. 2005).
See id. at 199.
Qassim v. Bush, 407 F. Supp. 2d 198 (D.D.C. 2005).
227
Id.
224
225
Id.
Id. at 200.
230 See id. at 200-01 (finding no basis to think petitioners would "return to the battlefield"
and that their continued detention for nine months after the CSRT's finding "far exceeds the
presumptive limit of six months the Supreme Court applied in the analogous context ...under
immigration statutes").
228
229
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[
concluded that it could not provide any remedy for this unlawful detention. Recognizing the flexibility and force of habeas as a remedy for
unlawful detention, it nevertheless found that the obstacles to the prisoners' release were too significant.2 3' The court, for example, rejected
the proposition that it could order the prisoners' release into the military
base at Guantinamo.2 3 2 It also concluded that it could not order the
prisoners' release into the United States because the admission and entry
of aliens remained a matter reserved exclusively to the political
branches. 2 33 Even granting the prisoners temporary admission through
some kind of "legal-fictional status," the district court explained, would
raise significant separation of power concerns and exceed the court's
competence and authority.2 34 In sum, the court found it had "no relief
to offer" for the Uighurs' illegal detention.23 5
The detainees appealed to the U.S. Court of Appeals for the District of Columbia Circuit. Late on the Friday afternoon before the
scheduled Monday morning oral argument,. the government notified the
court that it had transferred the ,detainees to be released in Albania
(along with three other Uighurs who had been declared "no longer enemy combatants"). 23 6 The government then moved to dismiss the appeal as moot. The court of appeals granted the motion and dismissed
the appeal. 23 7
Notwithstanding the failure of the court of appeals to reach the
merits, the Qassim case, highlights the significance of habeas as a remedy
against unlawful detention. The principle that the invasion of a legal
right requires a remedy is basic in American jurisprudence, 238 and the
ability of courts to redress injuries has been described as an essential
power of the Judiciary. 239 The inseparability of legal right and remedy
is central to habeas corpus. Long ago, William Blackstone described the
writ as "the great and efficacious writ in all manner of illegal confinement." 240 The Supreme Court has similarly commented on the writ's
231 See id. at 202-03.
232 See id. at 202.
233 See id. at 203.
234 Id. at
203.
Id.
236 Carol Rosenberg, Albania Grants Asylum to 5from China, MIAMI HERALD, May 6, 2006,
235
at A3.
237 Qassim v. Bush, 466 F.3d 1073 (D.C. Cit. 2006).
238 See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
239 See, e.g., Franklin v. Gwinnett Country Pub. Schs., 503 U.S. 60, 66 (1992).
240 WILLIAM BLACKSTONE,
3 COMMENTARIES *131.
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HABEAS AFTER RASUL
importance as a safeguard against unlawful and arbitrary executive action, presuming the power of a court to grant a remedy.241 It is the
nature of habeas as an equitable remedy that gives courts the power to
correct unlawful detention.2 4 2 While the broad, equitable nature of
habeas served as the basis for later expansions of habeas jurisdiction, for
example in broadening notions of custody to determine whether detention was unlawful,24 3 the issue in Qassim cut to the writ's essential
core-the right to an effective remedy for unlawful detention.
The Judiciary's equitable power to remedy unlawful detention is
also reflected in the federal habeas corpus statute, which authorizes
judges to "dispose of the matter as law and justice require. ' 24 4 Courts
have typically interpreted this provision broadly with respect to the relief
that may be fashioned.2 4 5 They have, for example, granted relief while
imposing appropriate conditions on that release, such as parole.24 6 Absent a clear statement by Congress to the contrary, habeas courts necessarily exercise this broad equitable power in remedying unlawful
detention.2 4 7 Congress's ability to curtail a district court's broad remedial power on habeas is subject to the restrictions under the Suspension
Clause, which, at the very minimum, guarantees the writ as it existed in
1789.248
241 See, e.g., Harris v. Nelson, 394 U.S. 286, 290-91 (1969) (describing the writ as "the
fundamental instrument for safeguarding individual freedom against arbitrary and lawless state
action").
242 See e.g., Schlup v. Delo, 513 U.S. 298, 319 (1995) (habeas "is, at its core, an equitable
remedy"); Jones v. Cunningham, 371 U.S. 236, 243 (1971) (habeas has never been "a static,
narrow, formalistic remedy").
243
Jones, 371 U.S. at 240-43.
244
28 U.S.C. § 2243 (2006).
245
See, e.g., Hilton v. Braunskill, 481 U.S. 770 (1969); Carafas v. LaValle, 391 U.S. 234,
239 (1968) ("mandate [of § 2243] is broad with respect to the relief that may be granted").
246 See, e.g., Barth v. Clise, 79 U.S. 400, 402 (1870) (authority of habeas court to release
prisoner on bail); Baker v. Sard, 420 F.2d 1342, 1343 (D.C. Cir. 1969) (per curiam) ("inherent" power of habeas court to grant release or bail). Similar principles govern grants of temporary release in immigration cases. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 700 (2001)
("[deportable] alien's release may... be conditioned on any of the various forms of supervised
relief that are appropriate in the circumstances"); Sereste-Khama v. Ashcroft, 215 F. Supp. 2d
37, 54 (D.D.C. 2002) (ordering release of prisoner pending removal from United States, subject
to appropriate conditions on that release); Louis v. Nelson, 544 F. Supp. 1004, 1006 (S.D. Fla.
1982) (ordering supervised release of non-citizens pending determination of their claim for admission to the United States).
247 See, e.g., Mapp v. Reno, 241 F.3d 221, 227 (2d Cir. 2001) (power of habeas court to bail
prisoner absent clear direction to the contrary); accord Johnston v. Marsh, 227 F.2d 528, 531
(3d Cir. 1955).
248 INS v. St. Cyr, 533 U.S. 289, 301 (2001).
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While the district judge in Qassim recognized the broad equitable
nature of the habeas remedy, he found his ability to grant relief constricted by separation of powers concerns, particularly the political
branches' role over the entry and admission of aliens to the United
States. The district judge thus concluded that he could not grant the
prisoners temporary, supervised release in the United States, pending
their lawful transfer to another country.
The court's analysis, however, neglected to consider how separation of powers principles supported, rather than constrained, its obligation to devise a suitable remedy on habeas for the prisoners' unlawful
detention. The protections of habeas are secured not only by the habeas
statute but also by the Suspension Clause, which provides a structural
check by the judiciary on unlawful executive detention. The Suspension
Clause's protections, as the Supreme Court has made clear, are strongest
in cases of executive imprisonment.24 9 Congressional suspension of the
writ has long been understood as the only way to lawfully deprive a
court of its habeas powers.2 5' The Supreme Court has made clear that
depriving federal courts of that power would raise a serious constitutional question under the Suspension Clause, at least to the extent
habeas review over a particular claim would historically have been available at common law.251
The Court has also emphasized the writ's importance in maintaining the separation of powers, allowing courts, as Justice O'Connor put
it, "to play a necessary role in maintaining th[e] delicate balance of governance, serving as an important judicial check on the Executive's discretion in the realm of detentions."2 52 Absent the writ's suspension by
Congress, she noted, courts must continue to exercise habeas review. In
249 See Rasul v. Bush, 542 U.S. 466, 474 (2004) ("Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be
imprisoned . . . save by the judgment of his peers or by the law of the land. The judges of
England developed the writ of habeas corpus largely to preserve these immunities from executive
restraint."); INS v. St. Cyr, 533 U.S. 289, 301 (2001) ("At its historical core, the writ of habeas
corpus has served as a means of reviewing the legality of Executive detention, and it is in that
context that its protections have been strongest.").
250 Hamdi v. Rumsfeld, 542 U.S. 507, 554 (2004) (Scalia, J.,
dissenting) (power to suspend
the writ belongs exclusively to Congress); Exparte Bollman, 8 U.S. (4 Cranch) 75, 101 (1807)
(Marshall, C.J.) ("If at any time the public safety should require the suspension of the powers
vested ... in the courts of the United States, it is for the legislature to say so."); JOSEPH STORY,
COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1336 (1833).
251 St. Cyr, 533 U.S. at 301.
252 Hamdi, 542 U.S. at 536 (plurality opinion).
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HABEAS AFTER RASUL
Hamdi v. Rumsfeld, that review meant inquiring into the asserted basis
for the petitioner's detention.2 53 While the Court has not addressed the
Suspension Clause's role with respect to a habeas court's power to provide an effective remedy for unlawful detention, such a role follows from
traditional understandings of the writ and from the need to prevent a
court's constitutionally-mandated inquiry into the lawfulness of a prisoner's detention from becoming meaningless by that court's inability to
254
grant relief.
The limits on habeas review in the DTA and MCA jeopardize the
guarantee that habeas provides against unlawful detention. The acts
limit judicial review to determining the validity of a CSRT determination, and fail to ensure that the court of appeals can provide the remedy
of release where the detention is unlawful. Unless the acts are construed
to provide the court with that power, they would eliminate a core aspect
of habeas review and thus raise significant constitutional problems.
The prospect of illegally imprisoning individuals without an effective remedy has significant implications for detentions at Guantinamo
and elsewhere. It would negate the Great Writ's inquiry into the lawfulness of a prisoner's confinement and guarantee against continued detention where that detention is unlawful. Indeed, the splitting of right and
remedy, as in Qassim, represents another feature of the administration's
attempt to create precisely the type of prison outside the law at Guantdnamo that habeas exists to prevent.
CONCLUSION
Secrecy has played a pivotal role at Guantinamo, pervading the
administration's attempt to develop an alternate system for the detention, interrogation, and transfer of prisoners. The Supreme Court's decision in Rasul rejected the predicate for this system by affirming the
federal courts' habeas corpus jurisdiction over the Guantinamo detain253
See id. at 537.
254
In addition, the district court in Qassim did not fully comprehend the consequences of
allowing the petitioners temporary entry into the United States through a form of supervised
release and granting them formal legal status as admitted aliens under the immigration laws. It is
well-settled, however, that the prisoners granted temporary entry do not have any right to remain in the Untied States and may subsequently be removed based on a lawful proceeding under
immigration law. See, e.g., Leng May Ma v. Barger, 357 U.S. 185, 190 (1958) ("The parole of
aliens seeking admission is simply a device through which needless confinement is avoided while
administrative proceedings are conducted."); Kaplan v. Tod, 267 U.S. 228, 230-31 (1925) (affirming exclusion of aliens temporarily released into the country as minors years before).
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ees. Since Rasul, the administration has consistently sought to curtail
the scope and force of habeas review and negate attempts by detainees to
enforce any rights,. This Article has attempted to show that habeas review provides a cluster of protections that together operate as a check
against secret and unlawful detention. Habeas provides a basis for access
to counsel, a judicial inquiry into the factual as well as legal basis for a
prisoner's detention, judicial review of a prisoner's transfer to another
custodian (including for continued detention and torture and other
abuse), and an effective remedy where the detention is illegal. To speak
of Rasul in formalistic terms or to characterize it as a narrow decision
about jurisdiction alone obscures the context in which it was decided
and its broad implications for detentions at Guantanamo and elsewhere.
The protections of habeas corpus vindicated in Rasul embody the rule of
law and that are antithetical to the system of secret detention at Guantdnamo that predated it and that the government has sought to maintain.