I rarely disagree with Eugene. Nonetheless, I am not convinced by his argument Congress could not suspend habeas to prevent the filing thousands of writs by enemy detainees in U.S. hands on foreign soil in his Monday hypothetical. As Eugene notes, the text of the Suspension Clause provides: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” A foreign war, while perhaps important for national security is neither a case of “rebellion or invasion,” so that settles it, right? Not necessarily. Article I, section 8 of the Constitution provides for the creation of “Armies” and a “Navy,” but no one seriously contends that this makes the Air Force illegal. The textual provisions clearly provide for the provision of the armed forces, and this settles the matter. Could not one analogously argue that the Suspension Clause authorizes suspension in times of dire national emergency?
Justices Scalia and Thomas both address this issue in their respective Hamdi decisions, both concluding (for different reasons) that Congress has the power (if not Constitutional authority) to suspend the writ where necessary. Justice Scalia, in defending his position (with which I agree) that the federal government must either prosecute Hamdi for treason or seek suspension of the writ of habeas corpus, argues that the textual limitation is no obstacle:
To be sure, suspension is limited by the Constitution to cases of rebellion or invasion. But whether the attacks of September 11, 2001, constitute an “invasion,” and whether those attacks still justify suspension several years later, are questions for Congress rather than this Court.
(Scalia, J., dissenting, p. 26). He further argues that
It is difficult to imagine situations in which security is so seriously threatened as to justify indefinite imprisonment without trial, and yet the constitutional conditions of rebellion or invasion are not met.
(Ibid, FN6).
Justice Thomas objects to Scalia’s position noting, as did Eugene, the textual predicate for suspension would seem to exclude foreign wars and other situations in which providing for writs of habeas corpus for enemy combatants could cause serious problems. Thus “Congress would then have to choose between acting unconstitutionally and depriving the President of the tools he needs to protect the nation.” (Thomas, J., dissenting, p. 16). Yet Thomas then proceeds to agree with Scalia that the Supreme Court “could not review Congress’ decision to suspend the writ” (Ibid., FN4). Therefore, as a practical matter, Congress could suspend the writ to address Eugene’s scenario, even if it would be, in some sense, “unconstitutional.” Nonetheless, Justice Thomas finds this objectionable because “the power to protect the nation must be the power to do so lawfully.”
Justice Thomas makes another point worth mentioning. He argues that if the treatment of certain detainees is unconstitutional, it is not suddenly made constitutional by suspending the writ of habeas corpus. The detainees are denied a legal remedy, but the constitutionality of their treatment remains unchanged. I agree. But the difficulties of Eugene’s scenario are not predicated on the U.S. military treating the detainees in an unlawful or unconstitutional manner. To the contrary, the difficulty arises from the need for the courts to hear, and the military to respond to, the thousands of habeas petitions. This burden remains no matter how well the detainees are treated.
While I tentatively disagree with Eugene’s bottom line on the suspension of habeas – Congress could do it if the situation required – I nonetheless believe the decision in Rasul was misguided. The fact that Congress and the President would potentially have to act in an unconstitutional manner to address such a scenario suggests the ruling is unwise. Moreover, the fact that the text of the Suspension Clause only makes reference to threats arising on domestic soil reinforces the Rasul dissenters’ argument that writs of habeas corpus are not available to enemy combatants detained outside of U.S. territory. But that is not what the Supreme Court decided, so (for the time being) we’ll have to live with it.
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