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Assault on Habeas Rights: The MCA of 2006 and its antecedents

Updated on April 4, 2009

The Military Commissions Act, 2006, and its antecedents

On October 17, 2006, President G.W. Bush signed the Military Commissions Act of 2006 (MCA), into law after its passage by Congress on September 29, that same year. The law was one of the many consequences of the events of 9/11 and America’s subsequent engagement in the war against terror. Under the provisions of the Act, anyone who was determined to be an unlawful enemy combatant was denied access to a writ for habeas corpus; a writ whose purpose was to allow the courts to rule upon the lawfulness or otherwise of any person’s detention. The Act left the determination as to whether any person was or was not an unlawful enemy combatant in the sole discretion of the executive arm of the government of the United States.

The right to habeas corpus is enshrined in the Constitution of the United States, but the same document specifically provides that access to the procedure may be suspended if, in the case of invasion or rebellion, considerations of public safety so require. So, on the face of it, the MCA of 2006 was not manifestly unconstitutional, and, indeed, it was not the first time that the constitutional provision had been abridged or suspended either by statute or by executive decree.

In 1861, President Abraham Lincoln suspended habeas corpus in the state of Maryland and in parts of several Midwestern states in respect of persons who were detained in any military facility or by any military authority or pursuant to the judgment of a court-martial or a military commission. This suspension was done by Presidential order.

Similarly, a few years later in the 1870s, President Ulysses S. Grant suspended the operation of the writ in nine South Carolina counties at a time when the federal government was involved in operations against the Ku Klux Klan under the Force Act of 1870 and the Ku Klux Klan Act of 1871.

During the 2nd World War, the extent to which the writ applies and the limitations to which it was subject were further defined. At this time, the Supreme Court endorsed a distinction between lawful and unlawful combatants when it held, in ex parte Quirin, 1942, that unlawful combatant saboteurs could be held without recourse to habeas corpus and that they could be tried by military commissions. In Hawaii, martial law had been declared after the Japanese attack on Pearl Harbour, and habeas corpus was suspended under a provision of the Hawaiian Organic Act. Martial law came to an end in 1944, but it was later held in Duncan v. Kahanamoku, 1946, that the provisions of the Organic Act which permitted the imposition of martial law did not give the authorities the power to exclude the jurisdiction of the civil courts, so that the suspension of the habeas right in Hawaii was an unlawful act. But this position did not extend to non-resident aliens who were captured and tried outside the United States by a US administered foreign court who were not entitled to a habeas hearing in US courts: Johnson v. Eisentrager, 1950.

More recently, the habeas right has faced renewed onslaught from both the legislative and executive arms of the US government. Following the Oklahoma City bombing, Congress passed, and President Bill Clinton signed into law, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The intent of the statute, in its own words, was to deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes. What the statute did was to limit access to the writ of habeas corpus. In section 101, AEDPA imposed a statute of limitation of one year following conviction for prisoners to seek habeas corpus. Further, the Act restricted the powers of the federal courts to grant the relief in cases where the decision being challenged was that of a state court unless (1) such a decision was contrary to established federal law as set out by the Supreme Court that the application of federal law was clearly unreasonable in the circumstances; or, (2) the decision of the state court was manifestly unreasonable given the evidence that was presented before the court.

AEDPA, especially in legislating a statute of limitation on seeking the habeas writ, struck a very severe blow to the right to habeas corpus. The Supreme Court under Justice Warren had, in the fifties and sixties, greatly expanded the scope of the federal writ in all areas, especially as it concerned death penalty proceedings; and though the court under Justice Burger and Justice Rehnquist had reined in the scope set by the Warren court somewhat, the AEDPA was the first direct assault on the right to habeas hearings in more than a generation. Worse was to come.

Following the events of 9/11, a Presidential Military Order of November 13, 2001, gave the President of the United States the power to detain anyone suspected of connection to terrorists or terrorism as an unlawful combatant. The government asserted that the Military Order permitted the government to hold such declared unlawful combatants indefinitely without charge, without a court hearing and without access to legal counsel. But in Hamdi v. Rumsfeld, 2004, the Supreme Court whittled down this wide ranging scope just a bit when it held that US citizens, even when declared unlawful combatants, had the right to seek the habeas writ.

In 2006, the assault on the right to habeas corpus continued when Congress passed the Defense Appropriation Act which, in S1005 (e) purported to strip the courts of jurisdiction to hear habeas corpus appeals from detainees being held at the Guantanamo Bay military facility. Once again, in Hamdan v. Rumsfeld, 2006, the Supreme Court rejected this view.

The MCA of 2006 was yet another attempt to entrench this denial of habeas rights to a certain class of persons. Under the provisions of the MCA, detainees who were awaiting determination as to whether they were enemy combatants or not were not entitled to seek habeas hearings. However, once the determination had been made, such a determination could be challenged in the courts, which challenge includes whether the evidence that was placed before the Combatant Status Review Tribunal (CSRT) was such as to warrant such a determination. This seemed reasonable on the surface, but there was a catch. The Act did not set a legal time limit in which the executive had to constitute a CSRT. Since the Act precluded any recourse to the courts before a determination had been made, it was possible for the government to prevent court review of the evidence on which it based its judgement by mere inaction. Indeed the thinking of the Bush administration, as enunciated by Attorney General Gonzalez in testimony before the Senate in January 2007, was that the US constitution does not expressly provide a right to habeas corpus to citizens and legal residents of the United States, and, as such, the provisions of the MCA could properly be extended to these classes of persons. Whatever one may think about the validity or otherwise of the view expressed by the Attorney General, it seems that it deliberately ignores the fact that most of the legal features associated with habeas corpus are expressly provided for in the 6th amendment of the US constitution.

In Boumediene v. Bush, 2007, the Court of Appeal, DC Circuit, upheld the provisions of the Act and the Supreme Court allowed the decision to stand by refusing to hear an appeal by the detainees. However, in June 2007, the Supreme Court changed its mind and decided to hear the appeal of Guantanamo detainees who wanted habeas reviews of their detentions.

Things moved apace. In Al-Marri v. Wright,2007, the Court of Appeal, 4th Circuit, held that the MCA did not deny a legal resident his rights to seek habeas review. In 2008, the Boumediene case finally came before the Supreme Court where it was held that Guantanamo detainees had a right to seek a writ of habeas corpus in US federal courts.

These rulings do not mean that enemy combatants cannot be detained indefinitely without charge or criminal proceedings, as the Court of Appeal emphasized in Al-Marri; it simply means that for such people to be so held, they must be properly designated as enemy combatants, and a proper designation would include judicial review of the grounds on which such a determination was made if it is requested by the detainee. This seems to have been the thinking when, in October 2008, a Washington DC district court demanded that 17 Chinese Muslims be brought before to appear in court because the constitution prohibits indefinite detention without cause, the continued detention is unlawful.

On January 21, 2009, an executive order by President Barack Obama asserted that Guantanamo detainees have the constitutional privilege of the writ of habeas corpus.

One wonders when the next assault on the habeas right will start from.


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