Don’t cross the habeas corpus line

DAVID B. RIVKIN JR. and LEE A. CASEY are partners in a Washington law firm and served in the JusticeDepartment under Presidents Ronald Reagan and George H.W. Bush.

LIKE ALL WARS, the “war on terror” has resulted in expanded use of the government’s power, and this is especially true with respect to the treatment of captured enemy combatants. The Bush administration has correctly held such individuals under the laws of war, without criminal trial, and has denied them the privileges of honorable “prisoners of war” under the Geneva Convention.

However, there are certain lines that have not been, and should not be, crossed -- at least not unless things get much worse. Unfortunately, the Senate is poised to consider just such a move in the form of legislation that would strip the federal courts of jurisdiction to consider habeas corpus petitions from noncitizen detainees.

This measure is being advanced as an amendment to the Department of Defense authorization bill. It would eliminate federal court jurisdiction, including the Supreme Court’s, over habeas corpus applications (or any other form of action challenging such detention) filed by noncitizens held as enemy combatants.

The writ of habeas corpus is rightly considered the glory of Anglo-American common law. For centuries, it has served as a central check on governmental power, permitting those held in custody to challenge the legality of their detention.

Under the Constitution, the right to habeas corpus review can be suspended “when in Cases of Rebellion or Invasion the public Safety may require it.” In the past, habeas corpus has been suspended only in the direst of circumstances, as at the beginning of the Civil War, when the federal government was reeling and Washington was vulnerable to attack and capture.


THIS IS NOT to say that the dangers presented by the war on terror are not real and immediate; they most certainly are. However, so far, judicial review of the government’s detention policies has not compromised its ability to defend American interests. No alleged terrorist has been released against the government’s will, and the Supreme Court has upheld most of the administration’s core legal claims. In this regard, a majority of the justices has accepted that the United States is at war, that captured enemy combatants (including American citizens) can be held without criminal charge or trial while the conflict continues, and that the Geneva Convention does not automatically apply. Lower federal courts have approved the establishment of military commissions to try captives for war crimes.

As a result, even assuming that the relevant constitutional standard for a suspension of habeas corpus has been met, proposals to eliminate habeas review of enemy combatant classifications are premature. In fact, it is not even clear that the courts would seek to extend such review to non-U.S. citizens held overseas. The Supreme Court ruled that the writ was available to detainees at Guantanamo Bay, Cuba, largely because that territory is so completely controlled by the United States. Moreover, to the extent that the Defense Department authorization amendment would effectively overrule that decision and eliminate habeas corpus review for individuals held at Guantanamo, it is unwise -- legally and politically.

We participated in a “friend of the court” brief supporting the administration before the Supreme Court in the Guantanamo case, Rasul vs. Bush, and remain doubtful of the court’s reasoning in that decision. However, despite the court’s ruling that habeas jurisdiction extended to foreign detainees at Guantanamo Bay, none have been released because of judicial action. They are, in fact, held on a firm legal basis -- as enemy combatants in time of war. If mistakes have been made in individual cases, they should be corrected. But the legal paradigm itself is sound and well grounded in long-standing precedent.

There is also a compelling political reason why the Senate should not adopt this provision. The judicial precedents on which the administration has relied in formulating U.S. detainee policy are well established, but those policies have nevertheless provoked considerable controversy at home and abroad. In that context, there is great value in having the courts affirm the basic legality of the administration’s approach.

Obviously, the government may not win in every case, and eventually some detainees may prevail. But it is highly unlikely that the system itself will be overturned. In short, the government is ahead of the game, and there is just no reason to change the rules.