Court Told it Lacks Power in Detainee Cases

Application of the Military Commissions Act is underway, with a Justice Department memo telling the U.S. District Court in D.C. it has no habeus authority over 196 pending cases involving Guantanamo detainees.

Moving quickly to implement the bill signed by President Bush this week that authorizes military trials of enemy combatants, the administration has formally notified the U.S. District Court here that it no longer has jurisdiction to consider hundreds of habeas corpus petitions filed by inmates at the Guantanamo Bay prison in Cuba. In a notice dated Wednesday, the Justice Department listed 196 pending habeas cases, some of which cover groups of detainees. The new Military Commissions Act (MCA), it said, provides that “no court, justice, or judge” can consider those petitions or other actions related to treatment or imprisonment filed by anyone designated as an enemy combatant, now or in the future. Beyond those already imprisoned at Guantanamo Bay or elsewhere, the law applies to all non-U.S. citizens, including permanent U.S. residents.

The new law already has been challenged as unconstitutional by lawyers representing the petitioners. The issue of detainee rights is likely to reach the Supreme Court for a third time.


A number of legal scholars and members of Congress, including Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), have said that the habeas provision of the new law violates a clause of the Constitution that says the right to challenge detention “shall not be suspended” except in cases of “rebellion or invasion.” Historically, the Constitution has been interpreted to apply equally to citizens and noncitizens under U.S. jurisdiction.

The administration’s persistence on the issue “demonstrates how difficult it is for the courts to enforce [the clause] in the face of a resolute executive branch that is bound and determined to resist it,” said Joseph Margulies, a Northwestern University law professor involved in the detainee cases.

From a public policy standpoint, the idea of locking accused terrorists and their abetters up without some reasonable degree of proof and judicial oversight strikes me as an incredibly bad idea. From a Constitutional law standpoint, though, this may well be within the power of the legislature. The key is the ”Shall Be Vested” clause, which is contained in the first sentence of Article III: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

FindLaw’s Annotated Constitution is invaluable for such things:

The distinction between judicial power and jurisdiction is especially pertinent to the meaning of the words ”shall be vested” in Sec. 1. Whereas all the judicial power of the United States is vested in the Supreme Court and the inferior federal courts created by Congress, neither has ever been vested with all the jurisdiction which could be granted and, Justice Story to the contrary, 133 the Constitution has not been read to mandate Congress to confer the entire jurisdiction it might. 134 Thus, except for the original jurisdiction of the Supreme Court, which flows directly from the Constitution, two prerequisites to jurisdiction must be present: first, the Constitution must have given the courts the capacity to receive it, 135 and, second, an act of Congress must have conferred it. 136 The fact that federal courts are of limited jurisdiction means that litigants in them must affirmatively establish that jurisdiction exists and may not confer nonexistent jurisdiction by consent or conduct. 137

[Footnote 134] See, e.g., Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799) (Justice Chase). A recent, sophisticated attempt to resurrect the core of Justice Story’s argument is Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B. U. L. Rev. 205 (1985); and see Symposium: Article III and the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990) (with articles by Amar, Meltzer, and Redish). Briefly, the matter is discussed more fully infra, Professor Amar argues, in part, from the text of Article III, Sec. 2, cl. 1, that the use of the word ”all” in each of federal question, admiralty, and public ambassador subclauses means that Congress must confer the entire judicial power to cases involving those issues, whereas it has more discretion in the other six categories.

[Footnote 135] Which was, of course, the point of Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803), once the power of the Court to hold legislation unconstitutional was established.

[Footnote 136] The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 252 (1868); Cary v. Curtis, 44 U.S. (3 How.) 236 (1845); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850); United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 33 (1812); Kline v. Burke Construction Co., 260 U.S. 226 (1922). It should be noted, however, that some judges have expressed the opinion that Congress’ authority is limited to some degree by the Constitution, such as by the due process clause, so that a limitation on jurisdiction which denied a litigant access to any remedy might be unconstitutional. Cf. Eisentrager v. Forrestal, 174 F. 2d 961, 965-966 (D.C.Cir. 1949), revd. on other grounds sub nom, Johnson v. Eisentrager, 339 U.S. 763 (1950); Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir.), cert. den., 335 U.S. 887 (1948); Petersen v. Clark, 285 F. Supp. 700. 703 n. 5 (D.N.D. Calif. 1968); Murray v. Vaughn, 300 F. Supp. 688. 694- 695 (D.R.I. 1969). The Supreme Court has had no occasion to consider the question.

[Footnote 137] Turner v. Bank of North America, 4 U.S. (4 Dall.) 8 (1799); Bingham v. Cabot, 3 U.S. (3 Dall.) 382 (1798); Jackson v. Ashton, 33 U.S. (8 Pet.) 148 (1834); Mitchell v. Maurer, 293 U.S. 237 (1934).

The Congress theoretically has absolute power to limit the power of–or, indeed, to disband entirely–the lower courts, so long as the president signs off.

Conversely, however, Article I, Section 9 provides (among other things) that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The history of judicial interpretation on this provision, however, is incredibly murky. Regardless, the Congress can certainly suspend the jurisdiction of lower courts on the matter. Thus, only the Supreme Court has the authority to decide.

FILED UNDER: Congress, Law and the Courts, Supreme Court, Terrorism, US Constitution, , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. cian says:

    When a system of justice is broken, then those administering and defending that system can never be trusted, and the system now in place is smashed.

    When you deny the accused the right to see the evidence being used against him or her, the system is bust.

    When you deny the accused the right to question those providing the evidence, the system is bust.

    When evidence coerced through aggressive interrogation techniques is deemed admissible, the system is bust.

    Those defending the system may very well have got the right person, but they can’t be trusted, because the system is bust.

    The evidence may be true, but it can’t be trusted, because the system is bust

    Those providing the evidence may be men and women of the highest calibre, but they can’t be trusted, because the system is bust.

    Most frightening of all perhaps (as noted by someone else on another blog) is the fact that President Bush, according to the text of his interview with Bill O Reilly, continues to insist that ALL those now held in GITMO were taken from the battlefield and not, as is now known, handed over by Afghan warlords for a bounty.

    That this is the guy who gets to say who is or isn’t a terrorist is an act of terror in itself.

  2. MikeT says:

    There is little reason to keep the average foreign terrorist alive when they are captured. The whole cell structure they use does a doozy on their ability to be helpful, they are not protected by the Geneva Convention and the damage we do to our legal system to protect them is immense.

    Once again we lose more of our system “so them terr’rists won’t win.” Seems like they’re winning hand over fist with our current leadership which has exploited them like a gay Catholic priest at an all boy’s school.

  3. Pug says:

    “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

    Have we been invaded? Is there a rebellion under way? The most egregious thing about the new law is that it applies to American citizens. I don’t know if enough people appreciate it, but habeas corpus is the only thing that keeps the government from being able to throw you in a dungeon.

    You used to have the right to an attorney, a hearing in open court and to confront your accuser. Those were basic American rights. It is incredible that so many “conservatives” would cheer as those right were taken away.

  4. James Joyner says:

    Pug: From paragraph three of the linked WaPo story:

    Beyond those already imprisoned at Guantanamo Bay or elsewhere, the law applies to all non-U.S. citizens, including permanent U.S. residents.

  5. Anderson says:

    I’d never seen that annotated Constitution before … cool, and bookmarkable. Thanks!

    I’m not sure how much use precedent is, precisely b/c this is an “unprecedented” kind of thing. David Addington et al. are deliberately aiming at the gray areas, trying to exploit all the Executive power they can.

    I think Amar and Story are more plausible as far as the plain meaning of the text goes, and certainly, the policy implications of jurisdiction-stripping are horrible (as both parties would be able to admit, in a less partisan clime).

    But it comes down to politics. Bush has 4 votes on the Court for just about anything his sneaky heart desires. And then there’s Kennedy — we will need an “ATTK” internet abbreviation, b/c we are going to be saying that a lot in years to come.

    –As for Pug, he’s pointing to a gray area in the MCA: “unlawful enemy combatant” doesn’t appear to exclude U.S. citizens. To say nothing of DOD’s simply grabbing Anderson, locking him up in the “alien” cage, and when he says “but I’m a U.S. citizen!” responding “we don’t think so.”

    Without habeas, how exactly would I be able to get to a court and show that I’m a citizen?

    I wouldn’t.

  6. Pug says:


    The Washington Post is incorrect. Anyone, including an American citizen, can be designated an enemy combatant and held without habeas corpus rights.

    Shame on the Washington Post for reporting that inaccurately.

  7. jukeboxgrad says:

    jj: “the law applies to all non-U.S. citizens”

    Just because WaPo is confused doesn’t mean that’s an excuse for you too.

    The bill, in section 948a, defines “unlawful enemy combatant” as follows:

    a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States

    There’s a big problem here, because they easily could have said “an alien person.” Instead, they said “a person.” This is very troubling, especially because there is other language that clearly references “alien,” elsewhere in the bill. In other words, this omission is quite deliberate.

    And here’s what this means: the president can unilaterally declare, without review by any court, that any US citizen is an “unlawful enemy combatant,” as long as the president, in his sole discretion, believes this person has “materially supported hostilities against the United States.” (What might that mean? Sending money to an Arab charity? Subscribing to the Hezbollah channel on satellite TV? Renting F911?)

    So what happens to such a person? Will they be tried by a military commission? Will they be tried at all, or simply detained indefinitely? Answer: whatever the president wants.

    It’s true that 948c says that “any alien unlawful enemy combatant is subject to trial by military commission under this chapter.” Trouble is, this language does not rule out the idea that someone other than an “alien unlawful enemy combatant” might also be “subject to trial by military commission.” We already know from 948a that a US citizen can be declared an “unlawful enemy combatant.” The problem with 948c is that it tells us nothing about what will happen to this particular US citizen. At best, it leaves a grey area. It does not exclude US citizens from prosecution by military commission. It simply makes an affirmative statement about what happens to an “alien unlawful enemy combatant,” and leaves us to wonder what’s going to happen to a US citizen who has been declared an “unlawful enemy combatant.”

    Here’s one possibility: detain him indefinitely.

    Totally aside from all that, Anderson is exactly right about this: “how exactly would I be able to get to a court and show that I’m a citizen?”

    This bill gives POTUS the power to snatch any US citizen off the street, and detain him indefinitely, simply by making a unilateral declaration, subject to no judicial review whatsoever, that the person has “materially supported hostilities against the United States.”

  8. Pug says:

    Before the signing of this law, the Bush administration has already used the enemy combatant designation against a U.S. citizen, Jose Padilla. He was confined for more than three years with no charges filed and no access to an attorney until a court stepped in and ordered him charged or released.

    Padilla has been charged now and, if he’s proved guilty, they can let him spend the rest of his life in beautiful Florence, Colorado. No problem, though the case against him is starting to look pretty weak. But holding American citizens without charges, no court hearings and no right to confront his accusers seems to be …well, un-American.

  9. Anderson says:

    Well said, JBG–I’m putting your comment on my blog as a fine summary of the issue (better than I’ve been able to put it).

  10. Dodd says:

    Historically, the Constitution has been interpreted to apply equally to citizens and noncitizens under U.S. jurisdiction.

    That is misleadingly worded. Eisentranger (SupCt, 1950) is the definitive word on this: “A nonresident enemy alien has no access to our courts in wartime…. These nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States.” Persons on American soil are entitled to habeas, persons not on American soil are not.

    In this, I have to agree with Jack Balkin: If an Administration were to attempt to apply the bill to deny habeas to someone held inside the US, the bill would be found unconstitutional as applied in that instance – the person would have the right to prove he was a citizen and therefore not subject to trial by a military commission. As far as Gitmo detainees are concerned, however, all the bill does is correct the recent misinterpretation of 28 U. S. C. §2241 in Rasul v. Bush (2004) wherein the Court decided that the US’ jurisdiction and control over Gitmo meant that habeus petitions from there were not under Eisentrager.

  11. Anderson says:

    Dodd, your notion that Gitmo isn’t “American soil” for all practical purposes, is unsupportable. For that matter, unless Bush gets another appointment, I wouldn’t bet the farm on Eisentrager‘s remaining good law; not even Scalia admires that one.

  12. Wayne says:

    Was the system broke when we held Germans in POW camps during WWII? Did the Germans win because we had to change some of our daily habits and lifestyle?

    Isn’t it any wonder why so many think the liberals treat this War on Terrorist as a law enforcement deal and not a war? The liberals scream that they are not but their actions and thoughts betrays them. Then again most liberal don’t have the slightest concept of what war is.

  13. Pug says:

    American citizens of Japanese ancestry had to change their daily habits and lifestyle quite a bit. American citizens, I said.

  14. Wayne says:

    What is often left out is that there were many American Citizens with Japanese ancestry that perform sabotage and espionage acts. Of course the MSM never cover that.