guantanamo detainees and hamdan and ahrens v. clark and johnson v eisentrager

Thus, these 14 non-US citizens challenged their detention in the US District Court for the District of Columbia. Both that court and the DC Court of Appeals held that, under the Supreme Court's 1950 precedent in Johnson v. Eisentrager, no access to US courts was available for the Guantanamo detainees. There really were two cases of importance that contributed to the lower courts' decisions: Johnson v. Eisentrager and the earlier (1948) Ahrens v. Clark. Since the Rasul decision of the Supreme Court was a 6-3 decision and centered on how to read these cases, a few words should be said about them.

The Two Background Cases --Ahrens First

The Ahrens case concerned about 120 Germans who were being held at Ellis Island, NJ (or is it NY? The Supreme Court decided in favor of NJ a few years ago) for eventual deportation to Germany. The removal orders were issued under a Presidential Proclamation in July 1945 pursuant to the Alien Enemy Act of 1798. The prisoners contended, in habeas corpus petitions filed in the District Court of Washington DC, that since the orders were issued after the termination of hostilities between the US and Germany, the orders exceeded the statutory authorization of the 1798 Act. The only question before the Court, however, was whether people held at Ellis Island (could contest their detention in a Washington DC District Court. No mention was made in the case of whether their German citizenship would disqualify them from access to the courts. The Court rested its case on the habeas statute in force at the time:

"The several justices of the Supreme Court and the several judges of the circuit courts of appeal and of the district courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty" (28 USC 452),

and concluded, by examining the relevant statutory history, that the phrase "within their respective jurisdictions" was added to the original language in 1867 in order to make sure that courts only heard the habeas appeals from people incarcerated in their districts. Thus, there would be no access to the DC Court for the Germans held at Ellis Island.

Eisentrager

Eisentrager concerned the detention and trial of 21 German nationals in China after WWII by the American military and then their incarceration in Landsberg Prison in Germany after conviction for violating the laws of war. They were convicted of helping the Japanese in the time between the German surrender early in May 1945 and the Japanese capitulation in August. From their prison in Germany they filed a habeas corpus petition in the US District Court for the District of Columbia alleging the impropriety of their incarceration. In an elegant unanimous opinion written by Justice Jackson, the Court denied these Germans access to American Courts. Jackson made a distinction between the citizen, who had rights to court process and the "alien," who "has been accorded a geneous and ascending scale of rights as he increases his identity with our society."

He then turned to a consideration of the rights of enemy aliens, which would naturally be less than peaceful aliens who were within the US borders. Indeed, the resident enemy alien has more rights with respect to court access, even when he has been properly incarcerated by the US, than the nonresident enemy alien. Jackson then listed six factors which disallowed the Germans incarcerated at Landsberg from suing out a writ of habeas corpus:

"he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States."

Because it wasn't a question before the Court, it had no need to reach the question of access to the Courts for people held on American soil.*

[*The legal position of Guantanamo as either American or foreign soil was at issue in the Rasul case. The Goverment argued that since Guantanamo was under the ultimate authority of Cuba, it was not American soil and therefore the case was "on all fours" with the precedent in Eisentrager. The Supreme Court concluded, however, that for all practical purposes the detention facility in that place was on American soil, a conclusion of not inconsiderable legal weight.]

The Decision in the Rasul Case (2004)

In a move highly criticized by the three dissenters, the six-person majority in Rasul determined that the six Eisentrager factors were required in order to foreclose access of non-US citizens to the jurisdiction of the District Courts. The majority concluded that because these individuals were within the jurisdictional limits of the United States and that they had not been shown to have fought against the United States through a conviction by military commission or other tribunal, they didn't fall within the express holding of Eisentrager. Though Justice Stevens, writing for the majority, didn't show sensitivity to the "sliding scale" analysis of Justice Jackson in Eisentrager, the majority conclusion seemed to reflect that kind of analysis. There were, therefore, enough factors differentiating the detainees in Rasul from those in Eisentrager to make their cases legally distinct.

The Court then held that US District Courts have jurisdiction to consider challenges to detention by Guantanamo-held detainees. What the Court did not specify, however, was whether in fact the Courts, which had jurisdiction, must actually hear the habeas corpus petitions. Yesterday's Congressional action gives the impression that this is what the Court's decision meant--and thus the Senate Amendment was meant to limit the reach of that right--but the literal language of the Rasul opinion doesn't necessarily grant a habeas corpus hearing right. The Court may have not gone this far because they knew that the Hamdan case was "in the works," a case which asked about the legality of the Military Commissions set up to hear charges against Guantanamo detainees. If the Court eventually determines that the Commissions are constitutional, it may foreclose habeas relief in the district courts for detainees, directing them, in contrast, to the Commissions that will hear their cases.

Conclusion

Thus, the legal stakes of decisions pursued after 9/11 with respect to detainees are coming to the public's attention now. So far the Bush administratin has had little good news, though it will probably, as I argue elsewhere, win in the Hamdan case. In any case any future historian, writing after the passions of these days have waned, will probably conclude that the Bush Administration, for whatever reason, exceeded its authority on a number of occasions, and was only "forced" into acting legally by the US Supreme Court.

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