BREAKING: 5-4 Supreme Court Extends Habeas Corpus To Foreign Nationals Detained At Guantanamo
Court Overturns Congress' Military Commissions Act
By Dan McLaughlin Posted in Guantanamo | Justice Kennedy | Supreme Court | War — Comments (119) / Email this page » / Leave a comment »
Initial report from SCOTUSBlog here. 5-4 decision written by Justice Kennedy, with the Chief Justice and Justices Scalia, Thomas and Alito dissenting.
UPDATES: The opinions, all 134 pages, are here. More below the fold.
Justice Kennedy starts by conceding that Congress intended to strip federal courts of jurisdiction over such petitions; thus, the constitutional issue is squarely presented. He reviews the history of habeas and finds it not dispositive on the geographic scope of the writ.
The Court gave only partial deference to the Government's longstanding position that Gitmo is not U.S. territory:
[F]or purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take noticeof the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory.
Were we to hold that the present cases turn on the political question doctrine, we would be required first to accept the Government’s premise that de jure sovereignty is the touchstone of habeas corpus jurisdiction. This premise, however, is unfounded. For the reasons indicated above, the history of common-law habeas corpus provides scant support for this proposition; and, for the reasons indicated below, that position would be inconsistent with our precedents and contrary to fundamental separation-of-powers principles.
Slip op. at 24-25. The Court rejected the argument that its precedents compelled use of the de jure sovereignty test:
Nothing in Eisentrager says that de jure sovereignty is or has ever been the only relevant consideration in determining the geographic reach of the Constitution or of habeas corpus. Were that the case, there would be considerable tension between Eisentrager, on the one hand, and the Insular Cases and Reid, on the other. Our cases need not be read to conflict in this manner. A constricted reading of Eisentrager overlooks what we see as a common thread uniting the Insular Cases, Eisentrager, and Reid: the idea that questions of extraterritoriality turn on objective
factors and practical concerns, not formalism.
Id. at 34. And here, at 35-36, is what looks like the key to the opinion - I've gotta run now, no further updates for a while:
And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained “ultimate sovereignty” over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.
Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say "what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803).