Commentary: Does habeas follow the flag?

By Lyle Denniston
on Jun 13, 2008 at 3:39 pm

Commentary

The Supreme Court’s second new decision on the rights of individuals being detained by the U.S. military — the ruling Thursday in Munaf v. Geren (06-1666) — does not rank in importance with the Guantanamo Bay decision.  Perhaps no other decision about habeas could compare with that. But, depending upon how broadly one reads the Munaf opinion, it could have some significant portents for the future of law during the “war-on-terrorism.” 

By refusing the Bush Administration’s plea to block any habeas claims against U.S. military jailers in Iraq, the Court has dropped a hint that, in the new global village, habeas will follow the American flag overseas — possibly, everywhere except an active battlefield.  It very likely does for U.S. citizens.  But it will be totally unsurprising if lawyers now make a real effort to claim the same rights for military detainees who are foreign nationals, too, and that might not be a forlorn effort.

Of course, the fact that the Court was unanimous, in an area potentially fraught with deep controversy, suggests caution in analyzing Munaf ‘s portents.  This is not a collection of judges that think alike on habeas rights, generally speaking.

But one still has to assume that, at least within the ranks of Bush Administration lawyers, it was not a foregone conclusion that their basic argument against extending habeas to U.S. military detention facilities overseas during wartime was going to lose unanimously.  Relying upon a post-World War II decision by the Supreme Court (Hirota v. MacArthur in 1948), Administration lawyers thought they had a chance to deny U.S. courts any authority to intrude into the actions of American military custodians holding prisoners in Iraq, especially since the U.S. forces were there to act as part of a multi-national force.

Chief Justice John G . Roberts, Jr., writing for the Court, reacted bluntly to the government’s reliance on Hirota, saying “that slip of a case cannot bear the weight the government would place on it.”  But he did go on to make considerable efforts to keep the decision narrow.  He stressed that it involved “only American citizens” and only the statutory right to seek a habeas writ (and thus did not encompass alien detainees or constitutional habeas rights).  He also emphasized that the captive citizens were being held by the U.S. military in temporary detention until Iraqi criminal proceedings against them could go forward.  And he relied upon the fact that the detention was being maintained overseas by “American soldiers subject to a United States chain of command.”

And, of course, the Court, while finding that the two citizens involved could file habeas claims against their military captors, also decided that they were not entitled to be released and not entitled to be held back from transfer to Iraqi authorities for criminal proceedings.  That, at least superficially, made it seem that the habeas right did not amount to much – once you sought it, you could not win the relief you pursued, it appeared.

But that may be deceiving.

Indulging in a broader reading of Munaf reveals some potency in the opinion.  For example, the Chief Justice’s opinion recites the language of the federal habeas statute and wording in past Supreme Court precedents on the scope of habeas, noting that the law “applies to persons held ‘in custody under or by color of the authority of the United States.’…An individual is held ‘in custody’ by the United States when the United States official charged with his detention has ”the power to produce’ him,” citing an 1855 decision.  The opinion added: “The disjunctive ‘or’ in [the habeas statute] makes clear that actual custody by the United States suffices for jurisdiction” in a U.S. court to hear a prisoner’s habeas claim.

Roberts, of course, made those comments in the course of discussing habeas rights for detained U.S. citizens.  If one takes the citizen qualification out of the opinion, and substitutes foreign national, four votes almost certainly would drop off immediately — the four dissenters in the Guantanamo decision providing habeas rights to aliens overseas (the Chief Justice himself and Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas).  The Chief Justice’s opinion, though, does stress that the non-citizen issue was not in the Munaf case, leaving it open.

The other five Justices (the majority in Guantanamo) might be persuaded to accord habeas rights to foreign nationals held in a U.S. military compound in Iraq for many of the same reasons they acknowledged such rights at Guantanamo.  While Justice Anthony M. Kennedy’s opinion in the Guantanamo litigation noted that citizenship was a factor in the overseas habeas calculus, it was only one factor, and not necessarily the dispositive one.

The Chief Justice’s Munaf opinion extending habeas into a war theater provides another potentially significant portent for the future. Hostilities certainly are hotter in Iraq than they are at Guantanamo Bay, and yet all nine Justices were not deterred by that fact in Munaf.  It does not seem likely — indeed, it appears entirely unlikely — that the Court would allow habeas for a captive taken on a battlefield, if the right were asserted immediately after the individual had been seized.  In fact, the Kennedy opinion on Guantanamo in fact specifically disclaims that.  But the U.S military’s detention facility in Baghdad — “Camp Cropper,” near the Baghdad international airport, is awfully close to combat operations, yet habeas was allowed there (at least for U.S. citizens).

Would the U.S. military detention facility at Bagram air base in Afghanistan be considered a battlefield where captives have no immediate habeas rights, or is it far enough removed from active combat to be considered, legally, like Camp Cropper?  Munaf does not settle that — but the fact that it is open suggests that the Camp Cropper analogy may turn out to be most apt.

And there is one other portent in Munaf: the fact that the Court, while allowing a habeas challenge to be filed, only barred a remedy in a very specific context: U.S. citizens who were being held captive, largely as a courtesy for the Iraqi government pending Iraqi criminal proceedings, were not allowed to win release or to bar a transfer.  Habeas claims by foreign nationals in overseas U.S. military detention — such as at Bagram — would not be detained in that context, in most cases.  A good many of them, in fact, have been held for years, as Guantanamo detainees have, and, like them, were taken into custody on suspicion of terrorist acts or sympathies.  The Munaf decision, when put together with the Guantanamo decision, may well give them, and their lawyers, some hope.