Artigo Revisado por pares

Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror

2007; Harvard Law Review Association; Volume: 120; Issue: 8 Linguagem: Inglês

ISSN

2161-976X

Autores

Richard H. Fallon, Daniel J. Meltzer,

Tópico(s)

Military and Defense Studies

Resumo

This Article provides a broad-lens, synoptic perspective on war-on-terrorism questions arising within habeas corpus jurisdiction of federal courts. Analytically, it develops a clear framework for sorting out tangle of jurisdictional, substantive, procedural, and scope-of-review issues that habeas cases often present. Methodologically, it champions a common law-like approach to habeas adjudication under which courts must exercise responsible judgment in adapting both statutory and constitutional language to unforeseen exigencies. The Article also takes substantive positions on a number of important issues. In jurisdictional domain, it defends Supreme Court's controversial decision in Rasul v. Bush, which interpreted habeas statute as it then stood to authorize inquiry into lawfulness of detentions at Guantanamo Bay. The Article also argues, however, that a court would overstep if it read Constitution as mandating review of detentions of aliens in such wholly foreign locales as Afghanistan or Iraq. Scrutinizing post-Rasul legislation that eliminates habeas for alien detainees and substitutes more limited review in D.C. Circuit, Article argues that resulting scheme is constitutionally valid as applied to most cases in which D.C. Circuit can exercise review, but invalid insofar as it entirely precludes detainees in United States or at Guantanamo Bay from challenging their detention or conditions of confinement before a civilian court. With respect to substantive rights, Article argues that American citizens seized outside of battlefield conditions have a right not to be detained indefinitely without civilian trial. It explains why constitutional rights of noncitizens are more limited, but argues that existing statutes should not be read to authorize aliens' detention as enemy combatants when they are seized in United States, away from any theater of combat. Finally, Article analyzes some of most important procedural and scope-of-review questions likely to come before habeas courts. INTRODUCTION During wars and emergencies, Presidents claim extraordinary authority, and exercise of executive power leads to asserted violations of constitutional rights and other legal norms. As disputes come to court, cries echo from one side that a ruling for challengers would imperil national security and from other that courts must hold our nation to ideals that make its security worth preserving. In context of war or quasi-war, separation-of-powers issues have most often come before courts in their habeas corpus jurisdiction. The Great Writ of habeas corpus is procedural mechanism through which courts have insisted that neither King, President, nor any other executive official may impose detention except as authorized by law. Where writ runs, courts have power and responsibility to enforce most basic requirements of rule of law, even in wartime. But where does writ run? And how far do executive powers to detain expand, and do ordinary rights to freedom from restraint shrink, in times of emergency? Although grants of habeas corpus jurisdiction require courts to decide these questions, range of possible answers is broad and correct answer often far from obvious. This much is evident from history, but confirmation, if needed, comes from Supreme Court's four decisions to date in war-on-terrorism cases. In one of those decisions, Rumsfeld v. Padilla, (1) Court's dismissal on jurisdictional grounds of a petition from a citizen seized and detained in United States provoked four dissenters to charge that majority had needlessly permitted technicalities to impede vindication of rights marking the essence of a free society. (2) The other three decisions scrutinized aspects of military detention that Executive had claimed should not be reviewed by courts. …

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