congress passes a stupid sanctions law, president vetoes it, congress overrides veto, executive simply refuses to enforce it outside U.S. territory, ka-ching. Epic Victory to the Secretary of State of the United States!
Habeas Corpus:
Argentina’s “Dirty War” 3000-30000 people “disappeared” i.e. tortured and murdered. Bodies often dumped at sea.
Habeas corpus = “Do you have the body”. I.e. habeas arose to prevent such “disapparances” (Argentina wasn’t the first place on earth to make political opponents “disappear”, just the most recent infamous example).
An extraordinary writ, equitable in nature. Habeas commands the shire reeve (sherrif) to account for whether they have the prisoner, whether the prisoner is alive, and by what right they have the prisoner (if they have no such right then they must give the prisoner up).<
The *Sheriff* bears the burden of proof that he in fact has authority to detain the prisoner.
“Authorization for Use of Military Force (AUMF)”
1) U.S. Declares war on earth wtf.
2) Not constitutionally necessary: president has an inherent power to initiate armed conflicts.
Hamdi v. Rumsfeld, 542 U. S. 507 (2004), five Members of the Court recognized that detention of individuals who fought against the United States in Afghanistan “for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.”
28 U. S. C. §2241 extended statutory habeas corpus jurisdiction to Guantanamo.
Military Commissions Act claims to strip habeas protection from “enemy combatants”.
Suspension clause:
Article I, Section 9
“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
Congress should “not be presumed to have effected such denial [of habeas relief] absent an unmistakably clear statement to the contrary”
Issue: status, i.e., petitioners’ designation by the Executive Branch as enemy combatants, or their physical location, i.e., their presence at Guantanamo Bay. The Government contends that non-citizens designated as enemy combatants and detained in territory located outside our Nation’s borders have no constitutional rights and no privilege of habeas corpus. Petitioners contend they do have cognizable constitutional rights and that Congress, in seeking to eliminate recourse to habeas corpus as a means to assert those rights, acted in violation of the Suspension Clause.
Right versus Privelege
whether foreign nationals, apprehended and detained in distant countries during a time of serious threats to our Nation’s security, may assert the privilege of the writ and seek its protection. The Court has been careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ. See INS v. St. Cyr, 533 U. S. 289, 300–301 (2001). But the analysis may begin with precedents as of 1789, for the Court has said that “at the absolute minimum” the Clause protects the writ as it existed when the Constitution was drafted and ratified.
The Government argues the common-law writ ran only to those territories over which the Crown was sovereign.
Petitioners argue that jurisdiction followed the King’s officers.
at common law a petitioner’s status as an alien was not a categorical bar to habeas corpus relief. See, e.g., Sommersett’s Case
evidence as to the geographic scope of the writ at common law *informative, but, again, not dispositive*. [Relativization]
Government argues Guantanamo is more closely analogous to Scotland and Hanover: English courts lacked the “power” to issue the writ to Scotland and Hanover, territories Lord Mansfield referred to as “foreign.”
“[n]otwithstanding the power which the judges have, yet where they cannot judge of the cause, or give relief upon it, they would not think proper to interpose; and therefore in the case of imprisonments in Guernsey, Jersey, Minorca, or the plantations, the most usual way is to complain to the king in Council”
*Power* as opposed to *Prudence*
Is Guantanamo more like Scotland and Hanover? Or is it more like India and the Channel Islands?
de jure and de facto recognition
Navassa case – sovereignty a political question
Boumedienne – sovereignty is polysemious
court determines:
1) U.S. is de facto sovereign over Guantanmo
2) Habeas follows de facto, not de jure sovereignty
How to analyze questions of application of the U.S. constitution outside U.S. territory and/or to non-U.S. citizens?
Rules based approach (Begriffsjurisprudenz)
*territory (U.S. / not U.S.)
*status (citizen / non-citizen)
-or-
Multi-factor Interest balancing approach (Interessenjurisprudenz)
–Functional approach
Factors:
(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.
Is Gitmo like Landsberg? Why or why not?
Abstention: federal court may abstain from deciding a case which is pending before a state court.