Academic journal article Harvard Law Review

Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror

Academic journal article Harvard Law Review

Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror

Article excerpt

This Article provides a broad-lens, synoptic perspective on war-on-terrorism questions arising within the habeas corpus jurisdiction of the federal courts. Analytically, it develops a clear framework for sorting out the tangle of jurisdictional, substantive, procedural, and scope-of-review issues that habeas cases often present. Methodologically, it champions a common law-like approach to habeas adjudication under which courts must exercise responsible judgment in adapting both statutory and constitutional language to unforeseen exigencies.

The Article also takes substantive positions on a number of important issues. In the jurisdictional domain, it defends the Supreme Court's controversial decision in Rasul v. Bush, which interpreted the habeas statute as it then stood to authorize inquiry into the lawfulness of detentions at Guantanamo Bay. The Article also argues, however, that a court would overstep if it read the Constitution as mandating review of detentions of aliens in such wholly foreign locales as Afghanistan or Iraq. Scrutinizing post-Rasul legislation that eliminates habeas for alien detainees and substitutes more limited review in the D.C. Circuit, the Article argues that the resulting scheme is constitutionally valid as applied to most cases in which the D.C. Circuit can exercise review, but invalid insofar as it entirely precludes detainees in the United States or at Guantanamo Bay from challenging their detention or conditions of confinement before a civilian court.

With respect to substantive rights, the Article argues that American citizens seized outside of battlefield conditions have a right not to be detained indefinitely without civilian trial. It explains why the constitutional rights of noncitizens are more limited, but argues that existing statutes should not be read to authorize aliens' detention as enemy combatants when they are seized in the United States, away from any theater of combat. Finally, the Article analyzes some of the most important procedural and scope-of-review questions likely to come before habeas courts.


During wars and emergencies, Presidents claim extraordinary authority, and the exercise of executive power leads to asserted violations of constitutional rights and other legal norms. As disputes come to court, cries echo from one side that a ruling for the challengers would imperil national security and from the other that courts must hold our nation to the ideals that make its security worth preserving.

In the context of war or quasi-war, separation-of-powers issues have most often come before the courts in their habeas corpus jurisdiction. The Great Writ of habeas corpus is the procedural mechanism through which courts have insisted that neither the King, the President, nor any other executive official may impose detention except as authorized by law. Where the writ runs, courts have the power and responsibility to enforce the most basic requirements of the rule of law, even in wartime.

But where does the writ run? And how far do executive powers to detain expand, and do ordinary rights to freedom from restraint shrink, in times of emergency? Although grants of habeas corpus jurisdiction require the courts to decide these questions, the range of possible answers is broad and the correct answer often far from obvious. This much is evident from history, but confirmation, if needed, comes from the Supreme Court's four decisions to date in war-on-terrorism cases. In one of those decisions, Rumsfeld v. Padilla, (1) the Court's dismissal on jurisdictional grounds of a petition from a citizen seized and detained in the United States provoked four dissenters to charge that the majority had needlessly permitted technicalities to impede the vindication of rights marking "the essence of a free society." (2) The other three decisions scrutinized aspects of military detention that the Executive had claimed should not be reviewed by the courts. …

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