Here’s the question I ask people who think that the Guantanamo detainees have a right to petition civilian courts for habeas corpus.
Let’s say that we weren’t dealing with several hundred detainees, but with tens or hundreds of thousands, as was the case during World War II. If one of them has the right to petition for habeas corpus, then all the others would, too (since the habeas claims, such as “I’m not really an enemy soldier,” would involve different facts for each person). Courts would have an obligation to consider each petition. Presumably the government would have an obligation to respond to the factual allegations (unless the factual allegations are clearly insufficient). Since each case would focus so closely on the factual claims, it wouldn’t be enough for government lawyers to submit boilerplate responses — they’d have to also interview soldiers (some of whom might still be out in the field) who can testify to the circumstances of the person’s capture.
What’s more, presumably many, perhaps most, detainees would feel some interest in trying to stymie our continuing war effort, or even an obligation to try to stymie it. So we might well find tens of thousands of habeas petitions, with the general form prepared by volunteer lawyers, and with the specific details written down in each petition by the detainee or the detainee’s friends. If Nazi and Japanese soldiers detained by the U.S. government filed such petitions en masse, for instance in 1944, what should our courts have done?
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