The U.S. Court of Appeals for the D.C. Circuit has issued a 2-1 decision upholding the Military Commissions Act and holding that federal courts do not have the jurisdiction to hear habeas corpus claims made by enemy combatants imprisoned at Guantanamo Bay. The Court uses the case of Johnson v. Eisentrager, 339 U.S. 763 (1950) as their basis for determining that the Military Commissions Act is compatible with the Suspension Clause (U.S. Const., Art. I, § 9, cl. 2). In that case, the Supreme Court held that German nationals imprisoned by US forces on German territory had no right to the writ of habeas corpus. The case law doesn’t give any grounds for one to argue that an alien combatant who is not being held on US territory should have access to the writ.
I haven’t had much time to digest the dissenting opinion yet, but the opinion doesn’t seem all that surprising to me. Congress does have the power to strip jurisdiction from the federal courts, and even the Supreme Court on certain cases. (Congress may not remove the original jurisdiction of the Supreme Court under Article III, however.) The Military Commissions Act did exactly that. There simply isn’t a precedent holding that states that an enemy combatant has the right to petition US courts for a writ of habeas corpus. As Eisentrager makes clear, there are many very compelling policy reasons why that should not be allowed.
I have a feeling that this will be appealed to the Supreme Court, as it seems to conflict with the Court’s prior holding in Rasul v. Bush, 542 U.S. 466 (2004). The lower court in that case also used Eisentrager as the controlling precedent, and the Court disagreed. However, Congress responded by passing the Detainee Treatment Act (which dealt with the Court’s reservations in Rasul) and the Military Commission Act (which dealt with similar issues presented by the Hamdan decision). The Court seems likely to have a pressing need to deal with the conflict between their prior holdings in Rasul and Hamdan and the jurisdiction-stripping measures in the Military Commissions Act.
I’m not sure how that possible appeal would play out with the Supreme Court now that Justices Roberts and Alito are on the bench. Both seem likely to follow the dissenting opinions in both Rasul and Hamdan and preserve Eisentrager as valid precedent. It depends on whether Justice Kennedy (now the swing vote) could be persuaded to change his opinion. In Rasul, Kennedy wrote a concurring opinion which distinguished that case from Eisentrager on two grounds: one that Guantanamo Bay was an area of American jurisdiction (unlike occupied Germany) and secondly that the defendants in Eisentrager had already been given process to determine their status as enemy combatants. Kennedy also wrote that there is some room for an area of military expertise upon which the judiciary is not to interfere. Kennedy’s position on the case at hand in this D.C. Circuit ruling could go either way.
It will be interesting to see if the Supreme Court does invalidate the Military Commissions Act — certainly with the change of the political climate it seems much less likely that the Congress would act to once again strip jurisdiction on these issues from the courts. However, the issues presented in this case may be sufficiently distinguished from those in Rasul and Hamdan to either clarify whether or not an enemy alien held in Guantanamo does or does not have the right to a writ of habeas corpus and whether the jurisdiction stripping measures of the Military Commissions Act are a violation of the Supreme Court’s original jurisdiction to hear cases arising under the Constitution. At this point, the way the Court may come out on those issues — assuming certiorari is granted at all — is anyone’s guess.
UPDATE: Marty Lederman takes a critical look at the decision and notes some flaws in the majority’s reasoning. It will be interesting to see how the Supreme Court will view the findings of the D.C. Circuit, and whether some of the objections raised in Rasul and Hamdan will come up once again in this case.