Thursday, June 16, 2005

Supreme Court, 1950: Enemy combatants have no right of habeas corpus

The USSC decided in Johnson v. Eisentrager in 1950 (a 6-3 ruling) that constitutional guarantee of habeas corpus does not apply to enemy aliens detained by the United States on foreign soil. From MSN:
The Bush administration says American courts have no jurisdiction to hear their petitions because they are enemy combatants and foreign nationals, held outside U.S. territory. (Under a century-old lease with Cuba the United States has "jurisdiction and control" at Guantanamo, but Cuba retains "ultimate sovereignty.") Therefore, the administration argues, the United States can hold them on Guantanamo indefinitely, without access to counsel or other legal rights.

As authority for this proposition, the administration cites the Supreme Court's June 5, 1950, ruling in Johnson v. Eisentrager, in which the court held that the constitutional guarantee of habeas corpus does not apply to enemy aliens who, like Eisentrager and his 20 German co-respondents in the case, were detained by the United States on foreign soil. So far, a district judge in Washington and the U.S. Court of Appeals for the District of Columbia Circuit have agreed with the Bush administration.
Justice Robert Jackson, writing for the majority, noted the following:
To grant the writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy.
So...what was that again about the rule of law and Gitmo detainees?

Finally, Jackson wrote "that the Constitution does not immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States." In other words, let the tribunals begin!