Habeas Provisions of the Military Commissions Act Upheld, But Narrowly

Judge James Robertson of the U.S. District Court for the District of Columbia (a Clinton appointee, for those keeping score at home) has upheld the section of the Military Commissions Act relating to the Habeas Corpus rights of foreign nationals held as unlawful enemy combatants by the government of the United States, at least in certain narrowly defined circumstances. The Judge ruled that Congress has authority to establish Habeas Corpus procedures for foreigners captured and held outside of the United States that are different from those that must be applied otherwise. In the ruling, however, Judge Robertson emphasized that he was only addressing cases where the petitioner was neither an American resident, nor within the US when apprehended, nor being held within the United States…

As the government argues in its reply brief, his connection to the United States lacks the geographical and volitional predicates necessary to claim a constitutional right to habeas corpus. Petitioner has never entered the United States and accordingly does not enjoy the “implied protection” that accompanies presence on American soil....

My ruling does not address whether and to what extent enemy aliens may invoke other constitutional rights; I find only that the Suspension Clause does not guarantee the right to petition for habeas corpus to non-resident enemy aliens captured and detained outside the United States.

Judge Robertson’s use (creation?) of the “geographical and volitional predicates” criteria does leave the door open for a future court to apply Constitutional Habeas Corpus protection to non-citizen residents of the United States, including illegal aliens.

In another part of the ruling, Judge Robertson discussed whether moving Habeas Corpus jurisdiction out of the normal Federal court system constituted a suspension in and of itself. I didn’t understand whatever point the Judge was trying to make…

Congress’s removal of jurisdiction from the federal courts was not a suspension of habeas corpus within the meaning of the Suspension Clause (or, to the extent that it was, it was plainly unconstitutional, in the absence of rebellion or invasion…)

So the MCA was either 1) not a suspension of Habeas Corpus and therefore constitutional or 2) an unconstitutional suspension of Habeas Corpus. It's safe to say that we knew, going in to the case, that the MCA was either constitutional or it wasn't. How does re-stating this fact provide information that might be useful for this case or future ones?

Finally, I’m uncomfortable with the Judge's blithe statement that the events of September 11, 2001 did not constitute an invasion…

Neither rebellion nor invasion was occurring at the time the MCA was enacted,

…but that the events of December 7, 1941 clearly did. In discussing the suspension of Habeas Corpus that followed the attack on Pearl Harbor as one of the four Habeas suspensions in American history, Judge Robertson tells us…

All four congressionally authorized executive suspensions [of Habeas Corpus] occurred during times of indisputable, and congressionally declared, rebellion or invasion.

If the point the Judge is trying to make that there is a difference between the full-out declaration of war that followed Pearl Harbor and the “authorization to use military force” that followed September 11, then the Judge may have a compelling point, but that only explains "congressionally declared", not "indisputable". By including "indisputable", the judge is injecting his personal opinions of the motivations and capabilities of violent international organizations into his ruling on a point of law. That goes beyond the role of a judge.

A Washington Post report on the ruling is available here.