Wednesday, February 28, 2007

On the Misuses of Habeas History on the D.C. Circuit

Jonathan Hafetz has a post at Balkinization on the (mis)uses of history in litigation involving Guantanamo detainees. In the D.C. Circuit's ruling in Boumediene v. Bush, Hafetz argues that the court got its history wrong. He writes, in part:

To begin with, the D.C. Circuit treated as an open question whether the writ would historically have extended to a territory like Guantanamo, where the United States exercises complete and exclusive jurisdiction and control, but not sovereignty. That question, however, was already answered by Rasul v. Bush (542 U.S. 466 (2004)). There, the Supreme Court concluded that the “[a]pplication of the habeas statute to persons detained at the [Guantanamo naval] base is consistent with the historical reach of the writ of habeas corpus.” Importantly, in Rasul the Court rejected the government’s argument that the writ’s reach at common law turned on territorial sovereignty rather than on “the practical question” of the crown’s control over the particular territory. The Court relied, for example, on King v. Cowle (97 Eng. Rep. 587 (K.B. 1759)), where Lord Mansfield explained that the writ would run to territories “under the subjection of the Crown.”

There is much more, but Hafetz's bottom line is in his conclusion:
Ultimately, the most compelling historical argument against the MCA is that the concept of a law-free zone at Guantanamo contradicts the writ’s essence as a check against unlawful executive detention. The notion that the President can maintain Guantanamo as a prison beyond the law based on the legal fine print of sovereignty is antithetical to the basic principles habeas corpus and the Suspension Clause embody. It does not take a historian to recognize this much.
For the rest, click here.