The Guantanamo Veil: The Right of Habeas Corpus to Detainees Under the Jurisdiction of the United States

BY: Karan Balaji

Karan is a sophomore in the School of Foreign Service studying international political economy. He is currently an editorial assistant for the Georgetown University Undergraduate Law Review.


Since the War on Terror was launched by the United States in response to the tragic attacks of 9/11, the treatment of suspected terrorists has become a widely-debated legal issue. One particular question stands out—should prisoners held in the U.S. naval base of Guantanamo Bay have the right to habeas corpus? In other words, do these detainees reserve the right to challenge the legality of their restraint by another entity? I argue here that these prisoners not only deserve the right to habeas, but that habeas must be granted to anyone detained within the jurisdiction of the United States.

To understand why prisoners detained on soil under United States jurisdiction do reserve the right to habeas, it is necessary to compare the decision-making behind two landmark cases regarding habeas and national jurisdiction— Johnson v. Eisentrager, 339 U.S. (1950), and Rasul v. Bush, 542 U.S. 466 (2004). In Eisentrager, the Court dismissed a petition for habeas corpus by twenty-one German detainees, stating that the respondents’ detainments did not lie within the bounds of the United States’ federal courts’ jurisdiction. Rasul ruled in favor of detainees in the American naval base at Guantanamo Bay petitioning for habeas, ruling that the base was within the jurisdiction of the United States, where habeas rights could be applied.

The Rasul Court states:

“The United States occupies the base, which comprises 45 square miles of land and water along the southeast coast of Cuba, pursuant to a 1903 Lease Agreement executed with the newly independent Republic of Cuba … “the Republic of Cuba consents that during the period of the occupation by the United States . . . the United States shall exercise complete jurisdiction and control over and within said areas.” In 1934, the parties entered into a treaty providing that, absent an agreement to modify or abrogate the lease, the lease would remain in effect “[s]o long as the United States of America shall not abandon the . . . naval station of Guantanamo.” Rasul v. Bush, 542 U.S. 466, 471 (2004).

The Court explicitly acknowledges that the United States could exercise “complete jurisdiction and control” over the leased areas provided by the lease agreement with Cuba, over which the Guantanamo Bay naval base exists. Not only does the United States exercise jurisdiction over the territory in which Guantanamo detainees are currently being held, as per the lease agreement, but after 1934, the United States could exercise such jurisdiction in perpetuity as the lease would “remain in effect” until the United States withdrew from the naval base. Id., at 471.

In order to dismiss the petition for habeas filed by the twenty-one respondents in Eisentrager, the Court resorts to a six-part test to determine whether the detainees are constitutionally entitled to sue for habeas. The Court states:

“We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption, we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though 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. We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.” Johnson v. Eisentrager, 339 U.S. 763, 777-778 (1950).

The Court also mentions that “in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien’s presence within its territorial jurisdiction that gave the Judiciary power to act,” stating, however, that war “exposes the relative vulnerability of the alien’s status. The security and protection enjoyed while the nation of his allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us.” Id., at 771.

Using this test, the Eisentrager Court found it appropriate to deny any constitutional claims by the respondents to receive habeas. In essence, the Court employs all six points of contention to determine whether the constitutional right to habeas (as provided by Art. I, sec. 9, c. 2—the Suspension Clause—of the Constitution) applies to the German detainees. The German detainees ultimately fail this test (“no right to the writ of habeas corpus appears.” Id., at 781). Additionally, the Court stresses that the offense, capture, trial, and punishment of the detainees were “beyond the territorial jurisdiction of any court of the United States,” and that the constitutional rights of an alien are impaired if the alien is a national of a country at war with the United States. This is where an important constitutional tool comes into play—the Suspension Clause.

The Clause states “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.” U.S. Const. art. I, sec. 9, c. 2. There is no indication of the citizenship status of a prisoner in the clause, and the Eisentrager Court itself does not consider citizenship to be the central point of contention. It can be reasonably inferred from all contentions in the Court’s test, as well as the emphasis placed on the facts of the detainees’ detainment’s far removal from the territorial jurisdiction of U.S. courts, that the facts of an alien’s detainment must comply with all factors of the six-part test, the extraterritoriality of their detainment, and the belligerent status of the alien’s residential nation in order for the alien to be denied their constitutional right to habeas as provided for by the Suspension Clause. The decision of Eisentrager is not challenged, and its framework acts as precedent for constitutional determination.

Rasul v. Bush demonstrates that providing substantial evidence of differentiability in the facts of an alien’s detainment and the precedent set by Eisentrager allow for an alien to exercise their right to habeas. Ruling in favor of the detainee petitioners, the Rasul Court states:

“Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control. Not only are petitioners differently situated from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners’ constitutional entitlement to habeas corpus.” Rasul v. Bush, 542 U.S. 466, 476 (2004).

In order to make its decision in favor of the detainees, the Court contrasts the situation of the detainees with the situation of Eisentrager respondents and subsequently takes crucial note of how the test utilized in Eisentrager was relevant to the Germans’ constitutional entitlement to habeas. A similar approach must be taken to analyze the facts of Guantanamo prisoners’ detainments, to demonstrate that their cases share a similar fact pattern with the petitioners in Rasul, but that their detainment does not comply with the framework created by Eisentrager. Understanding that the United States exercises jurisdiction over the Guantanamo Bay naval base is the first and foremost indication that the facts of Guantanamo detainment differ too greatly from the story of Eisentrager. The Guantanamo detainees are currently being held within the territorial jurisdiction of the United States, already conflicting with the facts of the detainment of the German respondents, who were imprisoned in a United States army-run prison on occupied German soil. The Eisentrager Court relies on the fact that the German detainees’ “trial and their punishment were all beyond the territorial jurisdiction of any court of the United States,” and so they could rightfully withhold any constitutional right for the aliens. However, acknowledging the Court’s claim that “the Court has been at pains to point out that it was the alien’s presence within its territorial jurisdiction that gave the Judiciary power to act,” Guantanamo detainees are expressly granted the constitutional right to habeas corpus by the precedent set by Eisentrager as the naval base at Guantanamo Bay is within the territorial jurisdiction of the United States. Johnson v. Eisentrager, 339 U.S. 763, 778 (1950), Id., at 771. 

Of course, it’s important to understand the historical application of rights under the jurisdiction of a state, and its derivation from common law. The Rasul Court recalls that under common law, “courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm, as well as the claims of persons detained in the so-called “exempt jurisdictions,” where ordinary writs did not run, and all other dominions under the sovereign’s control.” Rasul v. Bush , 542 U.S. 466, 481-482 (2004). Pointing to cases like United States v. Villato, where habeas relief was granted to non-citizen detainees in the United States, the Court further backed their claim that common law, as utilized in the United States, provided for habeas relief to non-citizens under the jurisdiction of the United States. Id., at 481. Further historical evidence of the writ of habeas corpus extending anywhere under the jurisdiction of a state is provided by Judge Rodgers in his dissent of Boumediene v. Bush, 476 F.3d (D.C. Cir. 2007):

“There is ample evidence that the writ did issue to faraway lands. In Ex parte Anderson, 3 El. & El. 487, 121 Eng. Rep. 525 (Q.B.1861), superseded by statute, 25 & 26 Vict., c. 20, § 1, the Court of Queen’s Bench exercised its common-law powers to issue a writ of habeas corpus to Quebec in Upper Canada after expressly acknowledging that it was “sensible of the inconvenience which may result from such a step.” Id. at 494-95, 121 Eng. Rep. at 527-28; see also Brown, 5 B. & S. 280, 122 Eng. Rep. 835 (issuing a writ to the Isle of Man in the sea between England and Ireland). English common-law courts also recognized the power to issue habeas corpus in India, even to non-subjects, and did so notwithstanding competition from local courts, well before England recognized its sovereignty in India.” Id., at 1003.

Justice Rodgers employs common law to argue that state authorities like the English government may extend the writ of habeas to anywhere under its jurisdiction, regardless of hindrance in the case involving Upper Canada and regardless of sovereignty in the issuing of habeas corpus in India. In the same light of traditional jurisprudence, the Rasul Court states “No party questions the District Court’s jurisdiction over petitioners’ custodians.” Rasul v. Bush, 542 U.S. 466, 483 (2004). Theoretically, habeas corpus, as expressed in the Suspension Clause, should extend over any territory where an American official exercises the jurisdiction of the United States and, in this case, to an American custodian over prisoners held in Guantanamo Bay. Liberal democracies today champion the use of legal institutions because of their ability to standardize the treatment of any individual under the supervision of the state. Unlike in, say, a theocracy, where inequality is fostered by adherence to archaic custom and laws not rooted in reason, a liberal state theoretically upholds egalitarianism under the presumption that law is absolute. Guantanamo Bay suggests otherwise, standing as unfortunate evidence that law is merely “absolute” to those who can gain proper exposure to it.

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