Writ of Habeas Corpus
A writ of habeas corpus is a court order addressed to a prison official (or other custodian) ordering that a detainee be brought to the court so it can be determined whether or not that person is imprisoned lawfully or should be released. It is a means by which detainees can seek release from unlawful imprisonment. According to
Hamdi v. Rumsfeld
This court case re-confirmed the right of a U.S. citizen to habeas corpus, even when declared an “enemy combatant”.
Hamdan v. Rumsfeld
On June 29, 2006, the Supreme Court ruled in Hamdan v. Rumsfeld that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay “violate both the Uniform Code of Military Justice and the four Geneva Conventions.”
After the court ruled that pending habeas cases could continue, the Bush administration pushed for the Military Commissions Act to counter this (Leonnig).
Military Commissions Act of 2006 (MCA)
The U.S. House and Senate passed this legislation on September 29, 2006, and President Bush signed it into law on October 17, 2006. The act suspends habeas corpus for alien enemy combatants (i.e. non-citizens). The law applies to non-U.S. citizens, including permanent U.S. residents, even though historically the Constitution has been interpreted to apply equally to citizens and non-citizens under U.S. jurisdiction (DeYoung).
Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
The MCA thus restricts habeas corpus appeals for those aliens detained as “enemy combatants” or awaiting such determination. After such determination is made, a provision (Section 1005 of the Detainee Treatment Act) allows for a limited habeas appeal process.
The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of whether the status determination ... was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence), and to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.
So detainees can go through an appeals process in the U.S. courts to try to change their status as an “enemy combatant”. However, there is no legal time limit that would force the government to provide a Combatant Status Review Tribunal (CSRT) hearing. Thus, an “enemy combatant” can be held indefinitely, and they are not allowed to petition any court for any reason before their CSRT hearing. The MCA also explicitly disallows invocation of the Geneva Conventions when executing a writ of habeas corpus.
After President Bush signed the Military Commissions Act, the Justice Department informed the U.S. Court of Appeals for the District of Columbia Circuit, as well as the U.S. District Court, that no court, justice or judge can consider the 196 pending habeas corpus cases from detainees at Guantanamo Bay now or in the future (DeYoung).
However, attorneys for detainees at Guantanamo Bay have challenged the MCA in court, arguing that the United States cannot indefinitely imprison foreign nationals without charging them with crimes and deny them the chance to test the evidence against them in the U.S. justice system. Attorneys have argued that the MCA does not apply to detainees with ongoing habeas cases, in part because the government can only take that drastic step in cases of rebellion or invasion. A group of seven federal judges have argued that the MCA is fatally flawed for a separate reason: a provision allows for the imprisonment of someone without any charges based on evidence produced through statements made by the detainee or someone else during torture.
Written by Kabir Khanna