DC Circuit Rules Constitutional Habeas Does Not Extend To Guantanamo
Posted on Tue Feb 20, 2007 at 12:00:13 PM EST
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In a divided 2-1 ruling, Boumediene v. Bush, a panel of the DC Circuit Court of Appeals has ruled that the "enemy alien" detainees at Guantanamo do not have a Constitutional right to a writ of habeas corpus. The decision is an exercise in disengenuity. It accepts as undisputed fact, with the merest discussion - that the detainees do not have a Constitutional habeas right because (1) Guantanamo is outside of the control of the US government in direct contradiction to the Supreme Court holding in Rasul and that (2) the detainees are "enemy aliens" for habeas purposes.
The DC Circuit concedes at fn. 8 that in fact the detainees are NOT enemy aliens, but that it does not matter anyway - thus standing Eisentrager on its head. And this is not insignificant - for the reasoning could be read to allow the Executive to detain American citizens outside US territory as well.
Consider this language:
[U]nder the common law [habeas corpus], the dispositive fact was not a petiotioner's alien enemy status, but his lack of presence within any sovereign territory.
In essence, the DC Circuit adopts the flawed thinking of Judge Robertson's Hamdan decision. The key passage begins at p. 17 of the DC Circuit opinion. Just like Robertson, the DC Circuit misreads Eisentrager and Rasul. The DC Circuit has now perversely opined that, with regard to the Great Writ, the Congressional power extends to jurisdictions that the Constitution did not. Ironic in light of the view of the Unitary Executive and the all powerful wartime Commander in Chief.
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