Detention: Law of: Legislative Development

More Habeas Silliness: The "Right to Habeas Corpus" Act

By Steve Vladeck
Monday, April 16, 2012, 3:14 PM

Rumor has it that sometime this week (perhaps as early as tomorrow), Congressmen Scott Rigell (R-VA) and Jeff Landry (R-LA) will introduce a bill titled the "Right to Habeas Corpus Act." In short, the bill would "firmly state that the detainee provisions of [last year's NDAA] do not allow for the indefinite detention of citizens without the right of redress." The bill would do so by providing that:

Nothing in the [AUMF] or the [FY2012 NDAA] shall be construed to deny the availability of the writ of habeas corpus in a court ordained or established by or under Article III of the Constitution for any person who is detained in the United States pursuant to the [AUMF].

It's always nice to see Members of Congress trying to take habeas seriously, but as I explain below this fold, this bill, however well-intentioned, is silly, utterly unnecessary, and perhaps even counterproductive.

First, there is no argument--none--that anything in the AUMF or the NDAA divests the federal courts of jurisdiction to entertain habeas petitions from anyone. The debate over the NDAA was not about a detainee's access to the courts, but rather the government's substantive detention authority. The whole point of the Feinstein Amendment to the NDAA was to clarify that nothing in the NDAA authorizes the detention of citizens anywhere or non-citizens arrested within the United States--that it merely preserved the status quo in those cases. We may object to preservation of the status quo--in part because it leaves open the possibility that individuals within the United States might be subject to military detention under the AUMF.  But that goes to detention authority, not judicial review. At no point in the NDAA debate was Congress concerned with the availability vel non of judicial review, and nothing in the NDAA has any bearing whatsoever on that issue.

Second, and related, the statute that does affect habeas jurisdiction for military detention--the jurisdiction-stripping provision of the Military Commissions Act of 2006--by its terms only applies to "an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." Thus, at least for citizens detained in the United States, the MCA is simply irrelevant.

Third, that provision of the MCA, as we know, was invalidated by the Supreme Court in Boumediene as applied to non-citizens detained at Guantanamo. It should necessarily follow from Boumediene that the MCA would be unconstitutional as applied to habeas petitions brought by anyone protected by the Suspension Clause, including U.S. citizens detained by U.S. authorities anywhere in the world, and non-citizens detained within the United States. [At least, until and unless the government provides those detainees with an adequate alternative remedy.]

Fourth, and finally, by going out of its way to emphasize that the AUMF and NDAA don't affect judicial review for individuals detained within the United States, the bill might have the counterproductive effect of bolstering arguments against judicial review for detentions outside the United States, especially vis-a-vis non-citizens, who may not be protected by the Suspension Clause. To be sure, the Supreme Court has usually required a "superclear statement" from Congress before a statute will be read to take away habeas jurisdiction. But at least politically, it's hardly impossible to imagine how arguments could be made based on such language to militate against access to the courts in those cases.

More fundamentally, the Rigell/Landry bill could have the unfortunate effect of perpetuating the already frustratingly incorrect (and misleading) narrative about the NDAA. As I've suggested before, the Feinstein Amendment utterly demolishes arguments about the NDAA expanding domestic detention authority--to say nothing of judicial review of such domestic detentions. And whatever else one might say about the AUMF, thanks to Boumediene, there is simply nothing to the argument that the federal courts lack habeas jurisdiction over individuals detained within the territorial United States. The real problems with the NDAA have to do with the exact cases the Rigell/Landry bill doesn't address. Bills like this will only further obfuscate that reality--and provide easily dispensed-with straw men.