October 3, 2006 | National Review Online

The New Detainee Law Does Not Deny Habeas Corpus

There are innumerable positives in the Military Commissions Act of 2006, the new law on the treatment of enemy combatants that President Bush will soon sign. Among the best is Congress's refusal to grant habeas-corpus rights to alien terrorists. After all, the terrorists already have them.

That the critique on this entirely appropriate measure has been dead wrong is given away by its full-throated hysteria. Typical was Richard Epstein, a distinguished constitutional law professor at the University of Chicago, who admonished the Senate Judiciary Committee that the Bush administration and a compliant Republican Congress were unconstitutionally “suspend[ing]” the great writ. The New York Times editorial board, in its signature hyperbole, railed that “[d]etainees in U.S. military prisons would lose the basic right to challenge their imprisonment.” What bunkum.


First, Congress cannot “suspend” habeas corpus by denying it to people who have no right to it in the first place. The right against suspension of habeas corpus is found in the Constitution (art. I, 9). Constitutional rights belong only to Americans — that is, according to the Supreme Court, U.S. citizens and those aliens who, by lawfully weaving themselves into the fabric of our society, have become part of our national community (which is to say, lawful permanent resident aliens). To the contrary, aliens with no immigration status who are captured and held outside the territorial jurisdiction of the United States, and whose only connection to our country is to wage a barbaric war against it, do not have any rights, much less “basic rights,” under our Constitution.

Indeed, even when the Supreme Court, in its radical 2004 Rasul case, opened the courthouse doors to enemy fighters in wartime for the first time in American history, it relied not on the Constitution but on the federal habeas corpus statute. So put aside that Rasul was an exercise in judicial legerdemain whose holding depended on a distortion of both that statute and the long-established limitations on the Court's own jurisdiction (which does not extend outside sovereign U.S. territory to places like Guantanamo Bay, Cuba). Even in its willful determination to reach a result that rewarded al Qaeda's lawfare, the Court declined to rule that alien combatants have fundamental habeas rights. Instead, they have only what Congress chooses to give them — which Congress can change at any time.


But wait. Isn't habeas corpus necessary so that the terrorists can press the Geneva Convention rights with which the Court most recently vested them in its 2006 Hamdan case? Wrong again.

To begin with, although its reasoning was murky, the Hamdan majority seems technically to have held that Geneva's Common Article 3 applied to military commissions because of a congressional statute, the Uniform Code of Military Justice. Again, if a right is rooted in a statute, not in the Constitution, Congress is at liberty to withdraw or alter the right simply by enacting a new statute. Such a right is not in any sense “basic.”

But don't some human-rights activists contend the Hamdan ruling means Common Article 3 applies not just because of a statute but because of its own force as part of a treaty that the United States has ratified? Well, yes, they do make that claim — and (as I recently argued here) they have gotten plenty of help from the recent debate prompted by Senators John McCain, Lindsey Graham, and others who insisted Hamdan meant Common Article 3 controls interrogation practices.

Even with all of that, though, it remains a settled principle that treaties are compacts between sovereign nations, not fonts of individual rights. Alleged violations are thus grist for diplomacy, not litigation. Treaties are not judicially enforceable by individuals absent an express statement to the contrary in the treaty's text. By contrast, Geneva's express statements indicate that no judicial intervention was contemplated.

This, no doubt, is why the Geneva Conventions, qua treaties, have never been judicially enforced. Consequently, if Congress had actually denied al Qaeda detainees a right to use Common Article 3 to challenge their detention in federal court (and, as we'll soon see, Congress has not done that), that would merely have reaffirmed what has been the law for over a half century.

If the political representatives of a nation believe one of its citizens is being unlawfully held at Gitmo, the proper procedure is for that nation to protest to our State Department, not for the detainee to sue our country in our courts. In fact, several nations have made such claims, and Bush administration has often responded by repatriating detainees to their home countries … only to have many of them rejoin the jihad. In any event, though, there would be nothing wrong with declining to allow habeas to be used for the creation of individual rights that detainees do not in fact have under international law.


But let's ignore that the critics are wrong about the entitlement of al Qaeda terrorists to constitutional or treaty-based rights to habeas. There is an even more gaping hole in their attack on the new law. Congress has already given al Qaeda detainees the very rights the critics claim have been denied.

Last December, Congress enacted the Detainee Treatment Act (DTA). It requires that the military must grant each detainee a Combatant Status Review Tribunal (CSRT) at which to challenge his detention. Assuming the military's CSRT process determines he is properly detained, the detainee then has a right to appeal to our civilian-justice system –specifically, to the U.S. Court of Appeals for the D.C. Circuit. And if that appeal is unsuccessful, the terrorist may also seek certiorari review by the Supreme Court.

This was a revolutionary innovation. As we've seen, Rasul did not (and could not) require Congress to allow enemy combatants access to the federal courts. Congress could lawfully have responded to Rasul by amending the habeas statute to make clear that al Qaeda terrorists have no more right to petition our courts in wartime than any other enemy prisoners have had in the preceding two-plus centuries. Instead, Congress responded by giving the enemy what are in every meaningful way habeas rights.

For the enemy combatants, habeas corpus, to borrow the Times's articulation, is simply a “right to challenge their imprisonment” in federal court. So what does the DTA do? It allows a detainee who has been found by the military to be properly held as an enemy combatant to challenge his incarceration in federal court. Under DTA section 1005(e)(2), that court (the D.C. Circuit) is expressly empowered to determine whether the detention is in violation of the Constitution and laws of the United States — which, of course, include treaties to whatever extent they may create individual rights.

Thus, the DTA has already granted to our enemies the very remedy critics claim is now being denied. Moreover, the new Military Commissions Act (MCA) does not repeal the DTA. It strengthens it. That is, because the Supreme Court's Hamdan decision created confusion about whether the DTA was meant to apply retroactively to the 400-plus habeas petitions that were already filed, the MCA clarifies that all detainees who wish to challenge their imprisonment must follow the DTA procedure for doing so. But, importantly, the right to challenge imprisonment is itself reaffirmed.

That the DTA does not refer to this right as habeas corpus is irrelevant. It's not the name of the remedy that counts; it's the substance. The DTA gives the detainee exactly what habeas provides. Therefore, it would have been pointless for the MCA to add yet another round of habeas.

To understand why this is so, one need only consider the legal restrictions on imprisoned American citizens. If they wish to claim their detention is baseless, they are not permitted to file habeas petitions which simply re-allege claims they have already made (or at least had a fair opportunity to make) during prior legal proceedings (such as the appeal of a criminal conviction, or a previously filed habeas petition). Repetitious claims are instantly disregarded by courts as a form of procedural default known as “abuse of the writ” of habeas corpus.

Given that habeas would not be available to an American for the purpose of rehashing a previously unsuccessful challenge to his imprisonment, why on earth should we extend habeas to an alien al Qaeda terrorist so he can re-litigate under the MCA an argument against his detention that has already been heard and rejected by a federal appeals court under the DTA?


Epstein's arguments are especially unbecoming. First, for all his bombast about the storied history of the habeas writ, he neglects to mention that the thousands upon thousands of alien enemy combatants our military has detained outside the U.S. in the long history of American warfare have never had a right to challenge their detention by calling on the judicial branch of our government at the very time the political branches have taken our nation into battle. It was Rasul that broke with tradition here. Even if enemy combatants had been denied habeas in this war — which, of course, has not happened — that would not have been a departure from tradition at all.

Second, it is simply preposterous to suggest, as Epstein does, that the government is likely to frustrate the DTA's judicial review procedure by such shenanigans as starting a CSRT but then suspending it indefinitely without ruling on a detainee's status (so the DTA right to appeal to the D.C. Circuit would never be triggered). The DTA not only directed the Defense Department to come up with CSRT procedures, including an annual review of the status of detainees found to be enemy combatants; it expressly contemplated oversight by the Armed Services committees in both Houses of Congress. There is no basis to believe either that the Pentagon is engaged in the kind of gamesmanship Epstein imagines or that Congress would tolerate such antics were they to occur.

It would be the height of folly to confer additional rights on alien enemy combatant terrorists — which, by the way, would be far better rights than honorable alien enemy combatants who do not mass-murder civilians get under the Geneva Conventions — for no better reason than to prevent an abuse that is virtually inconceivable in the real world. Such thinking reflects the same September 10th mentality that gave us the Justice Department's infamous “wall” — which prevented criminal investigators and national security agents from pooling threat information in order to forfend hypothetical and empirically unheard-of civil-rights violations.

Been there done that.

Andrew C. McCarthy is a senior fellow at the Foundation for the Defense of Democracies.