Habeas Corpus: The Push and Pull Between the Judicial, the Executive, and Legislative Branches

By Ann Ferrera

Immediately after the terrorist attacks on September 11, 2001, President Bush was able to pass the Authorization for the Use of Military Force (AUMF) with little opposition. The AUMF authorized the President to use “all necessary and appropriate force” against those nations, organizations, or persons he determined planned or aided the terrorist attacks. The AUMF continues to be used indiscriminately to capture and detain Muslim men on scant evidence, many at Guantanamo Bay, Cuba. As a result of these detentions, and after considerable delay, petitions for writs of Habeas Corpus started working their way through the courts and the government responses followed accordingly. In 2004 the Supreme Court decided the cases of Hamdi v. Rumsfeld and Rasul v. Bush.

In Hamdi, the majority concluded that Congress, via the AUMF, gave authority to the executive branch to detain individuals it deemed to be enemy combatants for “the duration of the conflict,” on wildly open-ended mandate considering the nature of the “war.” But in Rasul the Court held that United States courts had jurisdiction to hear petitions under 28 U.S.C. §2241, thus reversing the lower court’s decision dismissing the writ for lack of jurisdiction. The majority opinion found jurisdiction on the basis, inter alia, of the degree of control exercised by the United States over the Guantanamo Bay military base.

Congress responded with the Detainee Treatment Act of 2005, providing that the Court of Appeals for the District of Columbia would have exclusive jurisdiction to determine the validity of any executive decision to detain as an “enemy combatant.” The Court granted certiorari to Hamdan v. Rumsfeld case in 2006, and held that the Detainee Treatment Act did not strip the courts of habeas in cases commenced before the effective date of the Act.

In response to the Hamdan decision, Congress enacted The Military Commissions Act of 2006 (MCA) attempting again to wrestle jurisdiction away from the Court by giving to District of Columbia Circuit exclusive jurisdiction to determine the validity of detention decisions. Congress also modified the habeas statute by, in essence, denying habeas rights to any non-citizen “determined by the United States to have been properly detained as an enemy combatant.” These statutory efforts constitute a usurpation of the Constitution and an unbalancing of the separation of powers, with the judiciary on one side and Congress and the executive branch on the other.

In 2008, the Court in Boumediene v. Bush, for the first time in history, rejected the combined judgment of the executive and legislative branches with respect to military operations by addressing the practical consideration of who was controlling the location of the detention. In doing so, the Court looked at the functional considerations rather than the geographical location including citizenship and status of the detainee and the adequacy of the process through which the detention determination.

In Boumediene the detainees were not United States Citizens, yet they were contesting their determination as enemy combatants. Importantly the Court found that the detention proceedings fell well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review. And while the Court held that the detainees in Boumediene were apprehended and detained outside of the United States, because the United States exercises exclusive control over Guantanamo Bay, Cuba, and so practically “Guantanamo is not abroad.” The Court found as well that the military mission at Guantanamo would not be compromised if habeas corpus courts had jurisdiction to hear detainees’ claims.

The push and pull that has been going on since the start of the war on terror will surely continue. It is imperative that we continue to hold our government accountable for its actions, and support judicial efforts to restrain the Executive Branch.

Ann Marie Ferrara is a 2L at Western New England University School of Law focusing on the constitutionality of the United States’ policies of detention in the War on Terror.