The Suspension Clause

American citizens held by the United States have the right to seek the writ of habeas corpus whether they are held at home or abroad. Noncitizens held within the United States also have a right to seek the writ. Boumediene v. Bush (2008) extends the right to a third category of detainees: noncitizens held outside the territorial jurisdiction of the United States. The case is controversial because its holding, which has significant implications for national security, is contrary to precedent and unsupported by the Constitution’s text and history. 

Boumediene was not the first case in which the Supreme Court confronted the argument that a noncitizen enemy held abroad is entitled to seek a writ of habeas corpus in an American court. In Johnson v. Eisentrager (1950), a case decided in the wake of World War II, twenty-one German citizens held in an American military facility in Germany petitioned for the writ, maintaining that their detentions violated both the United States Constitution and international law. The Supreme Court held that American courts lacked authority to entertain these petitions. It observed that the constitutional text did not expressly confer such a right, and that no court in history had ever issued a writ of habeas corpus on behalf of a noncitizen held captive outside the territorial jurisdiction of the United States.   

Boumediene abandoned Eisentrager’s bright-line test based on sovereignty and citizenship in favor of a multi-factor test that extends habeas jurisdiction to locations where courts think it reasonable to do so. In Boumediene, the Court asserted that the U.S. Constitution grants noncitizens imprisoned in Guantanamo Bay, which is in the sovereign territory of Cuba, the right to seek habeas corpus in federal court. Its conclusion rested on three considerations: (1) the fact that the detainees disputed their status as enemy combatants; (2) the Court’s determination that the United States has functional control over Guantanamo Bay; and (3) its judgment that forcing the military to participate in habeas proceedings would not compromise national security. It then held that the Military Commissions Act, which permitted petitioners to challenge the legality of their detention in military tribunals but not federal habeas proceedings, was unconstitutional.

Reasonable people disagree about the wisdom of empowering the judiciary to second-guess the military’s decision, often made on the battlefield, to classify a prisoner as an enemy combatant. Boumediene, however, was not about choosing sides in that policy debate; it was about determining what the Suspension Clause required. The Court struggled to justify its new rule as one imposed by the Constitution. Because the text of the Suspension Clause does not specify the scope of the protected habeas right, the Court has always defined it with reference to history. And the Boumediene Court conceded that the historical record fails to establish that courts had ever entertained habeas petitions filed by noncitizens held in other countries. The dissenters, who maintained that the Suspension Clause did not override Congress’s choice to deny federal jurisdiction, had the better of the argument.  

Whether Boumediene is right or wrong, it dealt with the core office of the writ: testing the legality of executive detention. The application of the Suspension Clause in the post-conviction context is much less certain. Because habeas was not a tool for obtaining post-conviction relief at the time the Constitution was ratified, the founding generation could not have understood the Clause to protect this use of the writ. Congress made post-conviction relief for state prisoners available in the late nineteenth century. Even if legislative expansions of the writ ratchet up the protection offered by the Clause—a proposition that the Court has never squarely embraced—Congress surely has more flexibility to shape jurisdiction here than it does in the executive detention context.

A View on Congress’s Power to Limit the Writ of Habeas Corpus

Over the past two decades, Congress has made several efforts to limit the availability of the writ of habeas corpus. In 1996, it passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which prevented prisoners from filing multiple habeas petitions and mandated a deferential standard of review of state court decisions. And in 2006, Congress stripped from the federal courts the power to grant habeas relief to enemy combatants imprisoned outside the United States. These laws present difficult and controversial constitutional questions. Does the writ extend outside the territory of the United States? How much deference should the courts give Congress and the executive in determining the scope of habeas relief, especially in national security cases? I argue that Congress has the authority to regulate the availability of habeas corpus relief through laws like AEDPA so long as they afford prisoners with plausible innocence claims an opportunity for relief, but that Congress does not have the authority to withhold habeas relief from combatants detained at prisons like Guantanamo Bay that are under complete U.S. government control.

Anti-Terrorism and Effective Death Penalty Act (AEDPA)

AEDPA had two principal effects on the availability of habeas relief. First, it imposed procedural limits on habeas petitions, including a one-year statute of limitations and a bar on successive petitions. See 28 U.S.C. § 2244.  Second, it required federal courts to employ a deferential standard of review when reviewing state court decisions. See 28 U.S.C. § 2254.

I believe that AEDPA, at least as drafted by Congress, appropriately sets the contours for habeas relief. My perspective is informed by the influential views of the great Judge Henry Friendly. To Judge Friendly, the core of habeas corpus relief concerns prisoners with colorable claims of innocence. Accordingly, Judge Friendly believed that Congress could enact procedural and substantive limits on the availability of habeas relief. AEDPA codifies such limits. Moreover, AEDPA largely preserves what Judge Friendly believed to be the essential function of habeas: ensuring that the innocent have an opportunity to vindicate their claims in a federal court. See Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970).

In interpreting AEDPA, the Supreme Court has at times vindicated the innocence view and at times threatened it. In McQuiggin v. Perkins (2013), the Court correctly allowed an exception to AEDPA’s one-year statute of limitations for prisoners with a strong claim of innocence. In other cases such as Woods v. Etherton (2016), however, the Supreme Court has elevated the standard for habeas relief so as to make it nearly impossible for prisoners, even innocent ones, to obtain relief. So while I believe AEDPA as a general matter is consistent with the Constitution, I harbor concerns about the deferential standard of review of state court decisions mandated by the Supreme Court.

Congressional Limits on the Extraterritorial Scope of Habeas Corpus

In response to Supreme Court decisions holding that the great writ was available to certain enemy combatants detained during the War on Terror, Congress passed the Military Commissions Act (MCA) in 2006. The MCA stripped U.S. courts of the power to consider habeas petitions for enemy combatants held outside the United States. Two years later, the Court held the MCA unconstitutional as applied to combatants detained at Guantanamo Bay in Boumediene v. Bush (2008). In reaching this conclusion, the Court balanced three main factors: (1) the citizenship and status of the detainee; (2) the nature of the sites of apprehension and detention; and (3) the practical obstacles in resolving prisoner’s entitlement to the writ. With regard to Guantanamo, these factors leaned in favor of the availability of habeas relief. In particular, the Court noted that the U.S. government exercised complete and total control over the prison.

In 2010, the D.C. Circuit Court of Appeals reached the opposite conclusion with respect to enemy combatants held at the Bagram Air Base in Afghanistan in Al Maqaleh v. Gates. Applying the Court’s three-part test, it concluded that the combatants were not constitutionally entitled to file habeas petitions in U.S. courts. In reaching this conclusion, the court noted that the combatants were detained, quite literally, in a war zone, and this reality posed immense “practical obstacles” to allowing habeas proceedings in U.S. courts.

In my view, these decisions strike the right balance between preserving the writ as a check on government authority and safeguard of personal liberty while giving the executive branch space to operate in times of war.