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Run Amok

Lots of mockery among civil libertarians of this Eugene Volokh argument in re: the Gitmo detainees case, but I have a serious question. Doesn't the constitution specifically contemplate that circumstances might arise under which the government can suspend the writ of habeas corpus as an emergency measure? If so, isn't the right thing to say that if this sort of unlikely scenario were to emerge that congress could cross that bridge when we come to it through a suspension? It's very hard to see how under the actually obtaining circumstances, or anything remotely resembling them, that the Court's ruling will create a serious burden. That seems more than good enough to me.

UPDATE: See also Kieran Healy.

June 30, 2004 | Permalink


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I think the Suspension Clause has some caveats and limitations so you could not suspend it for people like those held on Gitmo. You could suspend it, I think, for people like Padilla (maybe). I haven't read the Lincoln cases since law school, so I'm not sure how much has been written on this, SCOTUS-wise

Art I, Sec 9, Cl 2:

Clause 2: 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.

Posted by: Goldberg | Jun 30, 2004 10:35:21 AM

Volokh actually had a post below his scenario explaining why he doesn't think congress actually could suspend the writ in this case. So I think Goldberg is correct.

Posted by: Dan Levine | Jun 30, 2004 10:40:09 AM

The Constitutional reach of habeas corpus does not -- or at least, has not been generally held to -- extend to foreigners outside of the territorial jurisdiction of the United States. Remember that part of the _Rasul_ decision was that, by treaty and regular practice (including the regular uncontested exercise of jurisdiction by the civilian courts over Guatanamo), Guatanamo is within the territorial jurisdiction of the United States.

Now, Volokh suggests "imagine that for security reasons, we need to keep them at a base that's at least as controlled by us as Guantanamo is," but its hard to see why such a base would have to, like Guatanamo, be, by treaty, within the full legal jurisdiction of the US, rather than one of the countries for whom we are fighting the war for *security* reasons.

Plus, the standard for review suggested by _Hamdi_ is really low, and I don't think the standard for non-citizens to whom habeas review is granted by _Rasul_ is going to be higher; much more likely, it will be less. So Volokh's characterization of the government burden is exaggerated.

Posted by: cmdicely | Jun 30, 2004 12:28:37 PM

Since Rasul is a statutory holding, couldn't Congress fix it by amending the habeas statute, even without a total or partial suspension of habeas?

Posted by: Katherine | Jun 30, 2004 12:29:40 PM

Yes, Congress can and Congress should.

Arguments premised on the "habeas suspension is available" argument assume that habeas was intended to apply to non-Americans (in the Gitmo case) or Americans who leave the country to join foreign military forces against the US (in the Padilla or Hamdi cases). I'm not yet certain that those assumptions are merited.

Posted by: Gitmo' o' those terrrorists | Jun 30, 2004 1:07:44 PM

Volokh's hypo is too farfetched. Its enough to argue that to require the military to create a process to gather enough evidence to defeat the writs brought by 600 non-uniformed al qaeda members claiming to be innocent shephards would infringe on the commander-in-chief clause, and increase the risk of our soldiers.

Posted by: Reg | Jun 30, 2004 2:03:14 PM

One of the things I think important to consider is the extent of time that any actions pertaining to detention will last. The reason for habeas corpus existing in the first place is to keep the government from "disappearing" people into its prisons. The suspension clause was written considering the nature of wars at the time, and obviously must be examined in light of modern techniques of war.

One of the important factors over the suspension clause is that as written, the suspension is limited in duration by the length of the invasion or insurrection. Undoubtedly the US had the right to detain presumed soldiers during WWII (or any other war abroad), but to detain them indefinitely following the conclusion of the war would be highly suspect.

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