D.C. Circuit Denies <em>Habeas</em> Rights to Detainees

February 20, 2007

A divided panel of the D.C. Circuit held both that the Military Commissisons Act (MCA) strips lower courts of jurisdiction to hear habeas petitions from Gitmo detainees, and that the MCA constitutionally suspended the writ of habeas corpus.  This second holding conflicts with the prior decision of the United States District Court for the District of Columbia, which held that Congress did not properly suspend the writ.

Writing at Balkinization, Marty Lederman points out that the D.C. Circuit's reasoning would probably also strip U.S. citizens of their habeas rights so long as they were held abroad:

Although the holding of Judge Randolph's opinion apparently extends only to aliens held abroad, the logic of his opinion at page 16 suggests that even U.S. citizens held abroad would not be entitled to constitutional habeas protections:

When agents of the Crown detained prisoners outside the Crown’s dominions, it was understood that they were outside the jurisdiction of the writ. See HOLDSWORTH, supra, at 116-17. Even British citizens imprisoned in “remote islands, garrisons, and other places” were “prevent[ed] from the benefit of the law,” 2 HENRY HALLAM, THE CONSTITUTIONAL HISTORY OF ENGLAND 127-28 (William S. Hein Co. 1989) (1827), which included access to habeas corpus, see DUKER, supra, at 51-53; HOLDSWORTH, supra, at 116; see also Johan Steyn, Guantanamo Bay: The Legal Black Hole, 53 INT’L & COMP. L.Q. 1, 8 (2004) (“the writ of habeas corpus would not be available” in “remote islands, garrisons, and other places” (internal quotation marks omitted)).