Effective Control - Oxford Journals - Oxford University Press

Human Rights Law Review 9:2 ß The Author [2009]. Published by Oxford University Press. All rights reserved. For Permissions, please email: [email protected] doi:10.1093/hrlr/ngp001 Advance Access publication 11 May 2009 .......................................................................

Habeas Corpus and Extraterritorial Jurisdiction after Boumediene:Towards a Doctrine of ‘Effective Control’ in the United States David Jenkins*

1. Introduction Among his first official acts in office, President Obama issued an executive order immediately suspending military commission proceedings against suspected terrorists at the Guantanamo Bay Naval Base in Cuba, and providing for the closure of the detention facilities there within a year.1 This order followed upon a protracted controversy in the federal courts over the legality of such extraordinary military detentions. In the course of this litigation, the US Supreme Court decided against aspects of the Bush Administration’s detention scheme on several occasions.2 In the most recent, Boumediene v Bush,3 the Supreme Court found that foreign ‘enemy combatants’, detained by the US military at Guantanamo Bay, had a constitutional right to petition for the writ of habeas corpus in a federal court, and that Congress had unlawfully

*Assistant Professor of Law, University of Copenhagen; Attorney at Law (West Virginia and Ohio, USA) ([email protected]). The author is a former Lecturer in Law at the University of Aberdeen and would like to thank the Law School for its support during the writing of this paper. 1

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US White House, Executive Order: Review and Disposition of Individuals detained at the Guanta¤namo Bay Naval Base and Closure of Detention Facilities, available at: http://www.whitehouse.gov/the_press_office/ClosureOfGuantanamoDetentionFacilities/ [last accessed 22 January 2009]. See Hamdi v Rumsfeld, 542 US 507 (2004); Rasul v Bush, 542 US 466 (2004); and Hamdan v Rumsfeld, 548 US 557 (2006). 553 US ___; 128 S. Ct. 2229 (2008) (all citations to the slip opinion).

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restricted this right with the Military Commissions Act of 2006 (MCA).4 In its decision, the Supreme Court touched upon Congress’ power to restrict or suspend habeas corpus under the Constitution’s Suspension Clause,5 finding that the MCA did not comply with its requirements. As a result of this case, on the basis of the US Constitution, federal courts now have extraterritorial habeas jurisdiction over foreign territory effectively controlled by the United States. Importantly, though, in considering the constitutional scope of habeas corpus, the Boumediene Court studied its origins in English law. The majority grounded its ruling in an Anglo-American legal heritage, in which the ‘Great Writ’ played a central role. In that heritage, habeas corpus was more than a formal legal remedy, it represented a fundamental principle that a prisoner can require the Government to show prompt legal justification for deprivation of his liberty in open court. The Supreme Court held that this principle, historically intertwined with constitutional developments in both the United States and Great Britain, weighed against foreign executive detentions outside of any judicial review whatsoever. With its attention to both principle and history, Boumediene therefore portrayed habeas corpus as having an especially important ‘legacy’ in Anglo-American law, which supported an expansive view of federal court jurisdiction. The Supreme Court’s emerging doctrine of ‘effective control’, as this paper calls it, accordingly determines territorial jurisdiction based upon the actual degree of control that the Government exercises over a place or person, rather than formalistic national boundaries. In this way, Boumediene put forward a more functional approach to assessing habeas jurisdiction, based upon prudential criteria such as personal status, the nature of the territory in question and other factors that weigh for or against jurisdiction. Where the Government effectively controls the territory, place of detention or perhaps even just the detainee himself, habeas jurisdiction is likely to follow. The closure of Guantanamo Bay notwithstanding, however, questions about the extraterritorial reach of habeas corpus remain important and relevant in anticipating foreign military detentions in the future. Another case, Munaf v Green,6 dealing with the detention of suspected terrorists in Iraq, indicated how the new effective control doctrine will possibly come into play in various other national security scenarios. This paper is divided into two parts. The first presents a study of the Guantanamo Bay litigation in the US Supreme Court. This history not only sketches out the development of the Court’s particular approach to extraterritorial jurisdiction, but also illustrates the dangers of a jurisdictional 4 5 6

Pub. L. No. 109-366, 120 Stat. 2600 (2006), codified as amended at 28 USC section 2241 (Supp. 2007). ‘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’, Article 1(9)(2), US Constitution. 553 US ___; 128 S. Ct. 2207 (2008) (all citations to the slip opinion).

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‘black hole’,7 where the executive branch can act without any legal accountability. The second part elaborates upon this framework, which abjures formalistic boundaries such as de jure sovereignty in favour of a case-specific functional approach, taking into account multiple prudential factors that indicate a government’s de facto, effective control over territory or the person. Boumediene’s doctrine of ‘effective control’ is potentially far reaching and better able to prevent arbitrary and abusive executive detentions anywhere in the world.8 Aside from a change in President, after Boumediene there should hopefully be no more Guantanamos.

2. The Expansion of Habeas Jurisdiction A. The ‘Enemy Combatant’ Cases in the Supreme Court The recent decision in Boumediene was the result of a long course of federal litigation over the ‘enemy combatant’ detentions that President Bush first ordered in late 2001. As a result of military operations in Afghanistan, approved by Congress through its Authorization for Use of Military Force (AUMF),9 the United States captured hundreds of Taliban and Al-Qaeda fighters. Along with other suspected terrorists captured around the globe, the American Government detained these individuals at Guantanamo Bay, an American military enclave on what is officially Cuban territory.10 The exact legal status of these individuals, both under international humanitarian law and domestic American law, was unclear and controversial for two 7 8

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See Lord Steyn, ‘Guantanamo Bay: The Legal Black Hole’, (2004) 53 International and Comparative Law Quarterly 1. For credible allegations of torture at Guantanamo Bay and harsh criticisms of other foreign ‘black sites’, where American officials have held suspected terrorists in the course of extraordinary rendition, see Council of Europe, Parliamentary Assembly, Committee on Legal Affairs and Human Rights, Doc. 10957 Alleged Secret Detentions and Unlawful Inter-State Transfers involving Council of Europe Member States, 12 June 2006; and Lewis, ‘Red Cross Finds Detainee Abuse in Guanta¤namo’, New York Times, 30 November 2004, available at: http://www.nytimes.com/2004/11/30/politics/30gitmo.html?_r¼1&ei¼5094&en¼8d107165e4 54d8b6&hp¼&ex¼1101877200&adxnnl¼1&oref¼slogin&partner¼homepage&adxnnlx¼120 7840632-QTsLSvsbhkWSXz0UK64u4w [last accessed 17 March 2009]. The US Convening Authority of Military Commissions, Susan Crawford, has also found that at least one prisoner at Guantanamo Bay had been tortured. Woodward, ‘Detainee Tortured, Says U.S. Official’, Washington Post, 14 January 2009, available at: http://www.washingtonpost.com/wp-dyn/ content/article/2009/01/13/AR2009011303372.html [last accessed 17 March 2009]. Authorization for Use of Military Force Joint Resolution, Pub. L. No. 107-40, 115 Stat. 224 (18 September 2001). This first prisoner intake later included suspected terrorists captured by the Americans in, or handed over by the authorities from, such places as, for example, Bosnia and Gambia. (see supra n. 3 at 3). The United States has a perpetual lease for Guantanamo Bay, which ends only upon mutual agreement between the United States and Cuba. See Lease of Lands for Coaling and Naval Stations, 23 February 1903, US^Cuba, Article III, TS No. 418, modified by Treaty Defining Relations with Cuba, 29 May 1934, US^Cuba, Article III, TS No. 866.


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main reasons. First, President Bush designated them as so-called ‘enemy combatants’, falling outside of the Third Geneva Convention’s protections for prisoners of war due to their irregular military status.11 He also issued a Military Order, subjecting non-citizen enemy combatants to trial by special military commissions for violating the laws of war (as interpreted by the President).12 The President’s unilateral actions raised serious constitutional questions about the executive war power to designate, detain and try enemy combatants outside of the regular civil courts or courts-martial.13 Second, and most relevant for this paper, the Government contended that federal district courts had no habeas jurisdiction over aliens detained at Guantanamo, because it was not de jure sovereign US territory. The consequence of this argument would be that courts could not even begin to review the legality of the executive detention decisions or status determinations in question, or any resulting military commission proceedings. For this jurisdictional argument, the Government primarily relied on the 1950s Supreme Court decision of Johnson v Eisentrager,14 in which federal habeas jurisdiction was denied to German citizens who were captured as alien belligerents, militarily tried and detained abroad after World War II.15 Some federal district and appellate courts followed this precedent and denied habeas petitions from alien detainees at Guantanamo because of a lack of extraterritorial jurisdiction.16 While the habeas petitions of the detainees worked their way through the federal district and appellate courts, Lord Steyn, a Lord of Appeal of the British House of Lords, notably criticised the situation in Guantanamo as a

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President Bush refused to recognise the Taliban, along with al-Qaeda fighters, as prisoners of war (POW) under Article 5, Geneva Convention Relative to the Treatment of Prisoners of War 1949, 6 UST 3316, 75 UNTS 135 (‘Geneva III’ or ‘Third Geneva Convention’) (ratified by the United States) for an alleged failure to meet the criteria of Article 4. The President did, however, express the intention to treat Taliban prisoners consistently with Geneva III, without conceding their prisoner of war (POW) status. US White House, ‘Fact Sheet: Status of Detainees at Guantanamo’, 7 February 2002, 2002 WL 1 91071 (White House). US White House, ‘Military Order: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism’, 13 November 2001, 66 Fed. Reg. 57,833 (’Military Order’). The nearest precedent to this claim of authority by the Bush Administration was the case of Ex parte Quirin, 317 US 1 (1942), the ‘Nazi Saboteur’s Case’, where President Roosevelt ordered the special military trial and execution of several Nazi saboteurs (some US citizens) who had clandestinely entered the United States during World War II. For lengthy examination of the case history, see Fisher, Nazi Saboteurs on Trial: A Military Tribunal and American Law (Lawrence, Kansas: University Press of Kansas, 2003). 339 US 763 (1950). See also Hirota v MacArthur, 338 US 197 (1948) (denying habeas jurisdiction to aliens convicted by the International Military Tribunal for the Far East and imprisoned abroad). See, for example, Al-Odah v United States, 321F.3d 1134 (DC Cir. 2003). But compare Gherebi v Bush, 374 F.3d 727 (9th Cir. 2003) (finding habeas jurisdiction due to exclusive US control over Guantanamo Bay).

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‘legal black hole’ that denied prisoners fundamental due process rights and allowed the executive to act arbitrarily and without any legal accountability.17 On 28 June 2004, in Rasul v Bush,18 the Supreme Court determined that there was no ‘black hole’, finding that federal courts indeed had statutorily granted jurisdiction to hear habeas corpus petitions originating from aliens at Guantanamo Bay. In an opinion by Justice Stevens, the Court found that the statute granting habeas jurisdiction to the federal district courts19 applied to Guantanamo because the United States enjoyed ‘complete jurisdiction and control’ over the territory; the United States effectively exercised de facto, although not de jure, sovereignty.20 Petitioners therefore had judicial access to challenge the legality of their detentions.21 Rasul, however, narrowly rested upon the territorial peculiarity of the Guantanamo Bay Naval Base and the Court’s interpretation of the habeas statute, rather than the Constitution itself. Qualified by this emerging ‘effective control’ exception, the generally apparent proposition of Eisentrager (that federal courts did not have habeas jurisdiction over non-citizens held on foreign soil) nevertheless remained undisturbed.22 On the same day as Rasul, in another habeas appeal, the Supreme Court did consider what procedural due process rights were constitutionally due to an American citizen held as an enemy combatant within the continental United States. In Hamdi v Rumsfeld,23 a plurality of Justices decided that a citizen detainee was constitutionally entitled to due process before the executive could designate and imprison him as an enemy combatant under the war powers. This required a balancing of the individual’s fundamental liberty interests with the Government’s interests in protecting national security, according to the due process analysis articulated in Mathews v Eldridge.24 Hamdi thus partially went to the merits of the habeas petition; the courts clearly had jurisdiction due to the petitioner’s citizenship and his location within de jure US territory. The case did not, however, address whether alien 17 18 19 20 21 22 23 24

Steyn, supra n. 7. 542 US 466; 124 S. Ct. 2686 (2004). 28 USC section 2241 (2000). 124 S. Ct. at 2696^8. Ibid. at 2996. Yin,‘The Role of Article III Courts in the War on Terrorism’, (2005) 13 William and Mary Bill of Rights Journal 1035 at 1056. 542 US 507; 124 S. Ct. 2633 (2004). 424 US 319 (1976). These interests required consideration in light of the governmental burden in affording added procedures, relative to the value of those procedures in protecting the private interest at stake: 124 S. Ct. at 2646^9. See, generally, Radack, ‘You Say Defendant, I Say Combatant: Opportunistic Treatment of Terrorism Suspects Held in the United States and the Need for Due Process’, (2005) 29 New York University Review Of Law and Social Change 525 (written before but published after the Supreme Court decision in Hamdi, and suggesting adoption of the Mathews test in unlawful combatant cases). Applying this test, the Court determined that ‘a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker’, 124 S. Ct. at 2648.


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detainees in Guantanamo would enjoy similar (if any) constitutional rights cognisable upon habeas review, post-Rasul. Nevertheless, Hamdi proposed a contextually sensitive, flexible standard of due process that could possibly serve as a model for assessing the merits of Guantanamo habeas petitions.25 Also, like Rasul, Hamdi stood for a broader proposition that individual liberty interests and the separation of powers doctrine would not permit the executive branch to imprison people arbitrarily and unaccountably. Rasul, resting on statutory interpretation, did not address the constitutional scope of habeas and so left open the possibility that Congress could simply revoke the courts’ habeas jurisdiction over Guantanamo Bay. The Republicancontrolled Congress tried to do just that and passed the Detainee Treatment Act of 2005, stripping federal courts of regular habeas jurisdiction over Guantanamo Bay in favour of special, more limited avenues of review.26 In Hamdan v Rumsfeld,27 however, the Supreme Court interpreted the Act as not ousting the Court’s jurisdiction over cases already pending in the federal courts (such as Hamdan’s) at the time of the statute’s enactment.28 This restrictive reading of the Act allowed the Court to once again avoid constitutional questions of whether Congress could oust the Supreme Court’s appellate jurisdiction over detention cases or otherwise restrict habeas corpus in Guantanamo Bay.29 A majority of Justices found, on the merits, that the President’s military commission regime violated procedural requirements mandated by Congress’ Uniform Code of Military Justice,30 statutorily incorporating Common Article 3 of the Geneva Conventions.31 A plurality further found that the commission procedures violated Article 75 of the First Protocol to the Geneva Conventions32 and that the commissions lacked jurisdiction, as the particular charge levied against the petitioner was not a recognisable offence under the international laws of war. Since the decision on the merits again rested upon statutory interpretation, the Court did not address constitutional due process issues, as it had done in Hamdi. Still, the result was an 25 26

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On the important distinction between jurisdictional and merits habeas review, see infra nn. 77 and 78. Section 1005, Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2739, (2005). This section also precluded federal courts from hearing any other action relating to detentions of an alien at Guantanamo Bay, who was in military custody or otherwise determined to be an enemy combatant. 548 US 557. The Supreme Court granted certiorari on 7 November 2005, 126 S. Ct. 622 (2005), but the President did not sign the Detainee Treatment Act into law until 30 December 2005. Franck, ‘Hamdan v. Rumsfeld: Presidential Power in Wartime’, (2007) 5 International Journal of Constitutional Law 380 at 381^2. Pub. L. No. 81-506, 64 Stat. 107 (1950), codified as amended at 10 USC section 801 ff. (2000). Common Article 3, Geneva Conventions prohibits, among other things, ‘the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples’. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protections of Victims of International Armed Conflicts 1977, 1125 UNTS 3.

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unmitigated defeat for the Government and suggested that courts should strictly interpret legislative provisions that restrict or suspend judicial access to detainees.33 Congress once again responded to the Supreme Court with new legislation, making clear its intention to strip federal courts of habeas jurisdiction over the Guantanamo detainees and to authorise special military commissions like those previously ordered by the President alone.34 With the MCA, Congress put military commissions on a statutory footing in order to authorise procedures like those struck down in Hamdan. The MCA again substituted habeas reviews with a very narrow avenue for appellate review of enemy combatant detentions. This time, in a clear statement, Congress suspended all future and pending legal actions originating from aliens detained at Guantanamo Bay, except according to the MCA’s new procedures.35 This was the jurisdictionstripping provision at issue in Boumediene. Now faced with such an unmistakable legislative intent to oust regular habeas review of the Guantanamo detentions, the Supreme Court was forced to confront the constitutional issue of whether the writ ran to Guantanamo and, if so, whether the Suspension Clause limited congressional power to interfere with it.36 Drawing upon its reasoning in Rasul, the Court in Boumediene found that, under the Constitution itself, federal courts had habeas jurisdiction over foreign locations under the effective and total control of the United States. De facto, rather than de jure, sovereignty was again the determinative factor. Consequently, the MCA’s review provisions neither suspended the writ in compliance with the Suspension Clause criteria, nor afforded an acceptably adequate and effective substitute in place of regular habeas review.37 The tragedy of the Guantanamo litigation is that so many detainees have languished for years in prison without sufficient due process and subjected to well-documented ill treatment.38 However, while some uncertainties about the legality of military commission trials remain,39 at least the Supreme Court 33 34 35 36 37

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Dorf, ‘The Orwellian Military Commissions Act of 2006’, (2007) 5 Journal of International Criminal Justice 10 at 10^1. Franck, supra n. 29 at 385^6. MCA, supra n. 4 at section 7. See Dorf, supra n. 33 at 14^5. See supra n. 3 at 44 ff, for discussion of the adequacy of habeas substitutes. The fact that some substitution is constitutionally permissible, even under the strict requirements of the Suspension Clause, further suggests that habeas corpus has a legacy and normative force going beyond the historically developed, formal form of the writ itself, informing interpretations of provisions of the Constitution. See supra n. 8. On 6 August 2008, the first military commission conviction came down from Guantanamo Bay. See Glaberson, ‘Bin Laden’s Former Driver is Convicted in Split Verdict’, 6 August 2008, available at: http://www.nytimes.com/2008/08/06/washington/07gitmo.html?_r¼1&hp¼&ad xnnl¼1&adxnnlx¼1218310518-WuowIMyrbxQfZNMbwhþemQ&oref¼slogin [last accessed 17 March 2009]. The Supreme Court also granted certiorari in the case of Ali Saleh Kahlah al-Marri, to decide whether the President has legal authority to detain a lawfully resident


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has now made it clear that the President cannot detain aliens abroad without any legal accountability whatsoever. The President arguably might have sweeping powers to deal with aliens suspected to be national security threats, but the ‘black hole’ that was Guantanamo is gone, as detainees abroad can now require him to justify their detention before a federal court. Nevertheless, the Guantanamo cases and the attendant human rights issues will remain a reminder of the general problems that can arise if courts cannot exercise extraterritorial jurisdiction over executive detentions abroad. The question of jurisdiction, for the moment, apparently still turns on the Eisentrager distinction between American and foreign territory. In drawing this line, however, the Boumediene Court looked beyond formalistic notions of national sovereignty to the de facto control of territory. In doing so, it turned to the principles advanced by habeas corpus in its historical development. What the Court found was a habeas legacy that eschewed rigid formalism in favour of a pragmatic and functional approach to jurisdiction, better suited to preventing arbitrary executive detentions wherever they might be.

B. Habeas Corpus as a Constitutional Legacy In coming to its decision, the Boumediene Court looked at the writ’s common law origins in England and considered them together with separation of powers principles that discouraged arbitrary, legally unaccountable imprisonment by the executive.40 This historical and principled basis for the writ, existing at a deeper normative level beneath the Constitution, was the key to formulating a functional jurisdictional framework. As the Court implied, the ‘Great Writ’ originates within a broader Anglo-American constitutional tradition, exerting a restraining force against governmental power in order to protect individual rights. Thus, apart from the writ’s formal operation in ‘black letter law’, it is this motivating legacy that requires the executive to justify promptly and sufficiently its restrictions on personal liberty before a court of lawçeven where aliens are imprisoned abroad. Boumediene thus establishes

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foreigner in the United States, as a suspected terrorist, indefinitely without criminal charge or trial: Al-Marri v Pucciarelli, 534 F.3d 213 (4th Cir. 2008) (en banc), cert. granted, 555 US ___ (2009), (No. 08-368). The Court subsequently declared the case moot, after the Government transferred al-Marri from military to civilian custody: see Al-Marri v Spagone, Order: Certiorari-Summary Disposition, 6 March 2009, 555 U.S._(2009), (No. 08 ^ 368). Scalia J, in his dissent, also took considerable account of the English history and precedent regarding habeas corpus. However, he came to the opposite conclusion that, at the time of the Constitution’s adoption, habeas was not available to aliens held outside of de jure sovereign territory. Typically adhering to what he found to be the ‘original meaning’ of habeas corpus in the Constitution (that is, the writ as it existed at common law as of 1789), he accordingly did not consider how habeas might be extra-territorially applied and expanded along principled lines.

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that habeas corpus (or similar substitute remedies) should have a wide extraterritorial ambit based upon a doctrine of ‘effective control’ of territory or the person. In Boumediene, the Supreme Court began its inquiry into the territorial scope of habeas corpus by looking at the writ’s origins in English law and its function in limiting government power. It proceeded on two important propositions: First, protection for the privilege of habeas corpus was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bills of Rights. In the system conceived by the Framers the writ had a centrality that must inform proper interpretation of the Suspension Clause. Second, to the extent there were settled precedents or legal commentaries in 1789 regarding the extra-territorial scope of the writ or its application to enemy aliens, those authorities can be instructive for the present cases.41 The methodological starting points for analysing the writ were, then, historical and principled. As the Supreme Court suggested, it seems that, at the time of adoption of the Constitution in 1789, habeas corpus was already intertwined with Anglo-American ideas about the separation of powers.42 From this point of view, both habeas corpus and the separation of powers demonstrate a deeply embedded normative assumption within the Anglo-American common law tradition, namely that: other than when the writ is suspended in extraordinary times of national emergency, prisoners have the power to compel the executive to justify its restrictions on personal liberty in an open court

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Supra. n. 3 at 8^9. In oral arguments in Boumediene, counsel for both sides and the Justices showed considerable attention to the origins and operation of the writ in England prior to the adoption of the Constitution, as well as some regard to the evolution of the writ in England after American independence in an attempt to ascertain how English courts have applied common historical precedents. For audio recordings of the oral arguments, refer to US Supreme Court, Boumediene v BushçOral Argument, 5 December 2007, available at: http://www.oyez.org/ cases/2000-2009/2007/2007_06_1195/argument/ [last accessed 17 March 2009]; and Duker, A Constitutional History of Habeas Corpus (Westport, CT: Greenwood Press, 1980) at 155, who, whilst considering the historical development of the writ in England and the United States, writes of the ‘the propensity of habeas corpus to find itself as the context in which a more general dialogue takes place, that is, a dialogue of political power . . .. One of the most important factors in the interpretation of habeas corpus then, has been the distribution of political power.’ See also, Duker, ibid. at 63. This article does not attempt an in-depth comparative examination of the separation of powers. Much has already been written on the development of the doctrine in Britain and the United States. See, for example, Tomkins, Public Law (Oxford: Oxford University Press, 2003) at chapter 2; Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967) at 3, 33^4, 47, 53, 98^9, 120 and 212; and Gwyn, The Meaning of the Separation of Powers: An Analysis of the Doctrine from the its Origin to the Adoption of the United States Constitution (New Orleans: Tulane University Press, 1965) at 5^8, 26 and 66^7.


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of law.43 This places the judiciary in a position not only to protect personal liberty, but also to check the powers of the legislative and executive branches. The historically evolving, yet principled, notion of habeas is therefore as much about ensuring some degree of separation of powers, and checks and balances between them, as it is about protecting individual rights. The writ, then, was conceptually intertwined with the separation of powers and personal liberty, giving it a privileged and critical status far beyond that of any other legal remedy. The Supreme Court looked at the long history of habeas corpus in English law since its inception with Magna Carta in 1215, chronicling its development over the centuries from a tool of Crown control over Royal officials (hence it’s nature as a prerogative writ) to a judicial restraint upon the King’s power itself.44 In the midst of the constitutional upheavals of the mid-17th century and as a response to continuing executive abuses of personal liberty, Parliament passed the Habeas Corpus Act of 1679, solidifying the writ in its recognisably modern form.45 The framers of the US Constitution were particularly anxious about centralised power and sought to protect the common-law writ against limitation by the federal government. The result was the Suspension Clause, setting forth the narrow conditions under which Congress might suspend the writ.46 Habeas corpus was thus one of the few individual rights implied in the Constitution before adoption of the 1791 Bill of Rights.47 According to the Court in Boumediene, ‘the Framers considered the writ a vital instrument for the protection of individual liberty’, while ‘[e]ven before the birth of this country, separation of powers was known to be a defense against tyranny’.48 Both the writ and the separation of 43

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See Baker, An Introduction to English Legal History, 3rd edn (London: Butterworths, 1990) 165^6 and 537^8. The strict requirements of the Suspension Clause notwithstanding, American and English law both have always recognised a power of the legislature to suspend the benefit of the writ during times of emergency. See Duker, ibid. at 141^2. Supra n. 3 at 9^10. See Baker, ibid. at 168^9; and Duker, supra n. 42 at 8 and 62. 31 Car. 2, ch. 2, 1679. Duker, supra n. 42 at 12. See Sharpe, The Law of Habeas Corpus, 2nd edn (Oxford: Clarendon Press, 1989) at 18^20. The Supreme Court apparently considered the framers’concern to be borne out on numerous occasions in later British history, when Parliament suspended the writ for extended periods of time: supra n. 3 at 14^5). In the United States, there have been few federal suspensions of the writ, most occurring during the Civil War in 1861^65 and the subsequent, sometimes turbulent period of Reconstruction in the defeated South. Accordingly, there have been relatively few cases adjudicating suspension of the writ, ibid. (slip op., at 44). See Ex parte Merryman 17 F. Cas. 144 (C.C.D. Md. 1861); Ex parte Milligan 4 Wall. 2 (1866); Duncan v Kahanamoku 327 US 304 (1946); and Sharpe, ibid. at 93^99. As Duker points out, supra n. 42 at 126 and 141, however, there have been various interpretations of just how the Suspension Clause was meant to protect habeas corpus from congressional restriction. He himself interprets it to have only prevented Congress from suspending state habeas corpus for federal prisoners. Nevertheless, as he admits, ‘[s]ince Ex parte Bollman [4 Cranch 75 (1807)], it has generally been accepted that the intent of the habeas clause was somehow to guarantee a federal writ of habeas corpus’ [footnotes omitted]. Like the Bill of Rights, the Suspension Clause does not expressly grant any right, but is couched in language forbidding or limiting governmental power to infringe a right assumed to exist in some form. Supra n. 3 at 12, quoting Loving v United States 517 US 748 at 756 (1996).

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powers in America, then, have deep roots in England’s own constitutional development, where the Great Writ was instrumental in allowing courts to prevent unlawful executive deprivations of personal liberty. The evolution of the writ in the United States and England could not be understood without appreciating the constitutional principles that developed alongside it.49 The long history of habeas corpus and the writ’s special role in promoting abstracted notions of justice and limited government all suggest its normative significance in the Anglo-American legal tradition, pre-dating and lying beneath the written Constitution. Habeas corpus was therefore more than a formal legal remedy; its iconic place in the common law gave it a powerful legacy that must inform doctrinal development regarding its territorial reach. The Suspension Clause certainly gave the Americans some added protection against legal encroachments on personal liberty, unlike in England where Parliament remained supreme and could suspend the writ as it willed. The Suspension Clause, however, only highlighted the importance of the writçindeed, its legacyçin the AngloAmerican legal tradition, even as of 1789. The Clause, or more precisely the common law writ it guarantees, protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the ‘delicate balance of governance’ that is itself the surest safeguard of liberty. See Hamdi, 542 U.S., at 536 (plurality opinion). The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account.50 The Supreme Court’s understanding of the Suspension Clause in Boumediene thus re-affirmed the basic, general premise of habeas corpus as an especially important legal means for maintaining liberty through limited government. As such, judicial interpretation of the constitutional scope and reach of the writ would have to give special regard to this essential legacy.

3. Towards a Doctrine of Effective Control A. Effective Control of Territory Latching on to this legacy, Boumediene took an approach to extraterritoriality, whereby the effective control of territory or the person overcomes the usual

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Ibid. at 13^5: ‘The separation-of-powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause.’ Ibid.


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presumption against jurisdiction over de jure foreign territory. The determination of effective control itself involves the judicial evaluation of various and sundry prudential factors, to be considered under case circumstances and weighing for or against extraterritorial jurisdiction. In Boumediene, the Supreme Court set out its prudential framework for assessing jurisdiction, declaring that . . . at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.51 This analysis requires courts to consider personal status, the location of detention and many other possible prudential considerations in ultimately determining whether a government exercises effective control of territory, the specific place of detention or even perhaps just the person detained. The Boumediene Court focused on two main issues in assessing extraterritorial jurisdiction: the petitioners’ place of detention at Guantanamo Bay and their personal status as alien enemy combatants.52 The Government concluded that these two factors precluded federal habeas jurisdiction except by statutory extension, and that Congress had expressly withdrawn such jurisdiction with the MCA. When drafting the Suspension Clause, it argued, the Framers could not have expected the writ to protect foreigners outside of American territory. As a starting point in assessing the scope of habeas, the Court explored the writ as it existed at common law in 1789, when the Constitution was adopted. To do this, it turned to English precedent and authorities for habeas that would have been known to the Framers.53 The Court found (Kennedy J. writing for the majority) that, based on these sources, while ‘at common law a petitioner’s status as an alien was not a categorical bar to habeas corpus relief’,54 the geographical scope of the writ and the extraterritorial jurisdiction of the English courts was not so clear. The Supreme Court considered cases where the writ had issued to ‘exempt jurisdictions’, like the Channel Islands and the British Raj in India, that were not part of England; while the former remained formally under Crown control, special imperial (not English) courts 51 52 53

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Supra n. 3 at 36, citing Eisentrager 339 US at 777; and Rasul 542 US at 476 and 487. Ibid. at 8. Immigration and Naturalization Service v St. Cyr 533 US 289, at 301^302 (2001). For an historical examination of common law habeas corpus and how the Framers might have understood the Suspension Clause, as well as how that history informs the enemy combatant controversies, see generally Halliday and White, ‘The Suspension Clause: English Text, Imperial Contexts, and American Implications’, (2008) 94 Virginia Law Review 575. Supra n. 3 at 16.

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sat in India under statutory authority from Parliament.55 The Court spent more time considering why the writ did not run from English courts to ‘foreign’ territory like Scotland, unlike Ireland and far-flung Canada. Scotland was foreign only in the sense that it had previously been an independent nation before union with England and so had its own Roman-influenced legal system protected by the 1706^07 Acts of Union.56 The Supreme Court opined that old, established jurisdictional boundaries and other prudential considerations would have dissuaded English courts from ever issuing the writ to neighbouring Scotland, while the possibility existed for Ireland and parts of Canada, which had adopted English common law.57 Formal notions of sovereignty and personal status, therefore, could not wholly explain or rationalise the territorial ambit of the writ before 1789.58 The Court conceded that there were ‘inherent shortcomings in the historical record’,59 so that the relevant English precedent, while instructive, could not settle the issue of whether the Framers, in 1789, would or would not have expected habeas corpus to extend to foreigners held outside of the United States by American officials.60 The majority of the Court emphasised that, while the old English authorities might thus be useful for determining the minimum protections of habeas corpus, the writ’s current scope under the Constitution is now wider than its original or historical one might have been in 1789.61 Accordingly, the lack of any clear English precedent that habeas ran to aliens in foreign territory was not dispositive of the modern reach of the writ. The Court admitted, ‘[g]iven 55 56 57 58

59 60

61

Ibid. at 18. Articles 18 and 19, Union with Scotland Act 1706 (UK) c. 11, 6 Ann (passed by pre-Union English Parliament); Articles 18 and 19 Union with England Act 1707 (UK) c. 7 (passed by pre-Union Scottish Parliament) [these are collectively referred to as the ‘Acts of Union’]. See Sharpe, supra n. 45 at 189 and 192. Supra n. 3 at 20^1. Another prudential factor that might have prevented English courts from issuing the writ to Scotland, was that Scots law had its own alternative and effective mechanisms for testing the legality of detention, thus preventing Scotland from being a ‘black hole’ of legal process that could be abused by the King or his officials. Because the writ of habeas corpus was unknown in Scots law, an English court attempting to issue it for an imprisonment there would not just be jumping jurisdictional boundaries where a different court system operated, but interfering with a different legal system altogether, expressly protected by the Acts of Union. Furthermore, the writ originated as a prerogative remedy stemming from the inherent authority of the English Crown, a Royal authority that had developed differently within Scotland prior to the union of the Crowns in 1603. See Sharpe, supra n. 45 at 191. On the whole, the matter of the extra territorial reach of the writ is unclear and somewhat complicated. The best and simplest explanation might just be that the territorial scope of habeas corpus, by nature a flexible prerogative writ, developed in a historically anomalous manner with the conquest (India), settlement (Canada) or peaceful accession (Hannover) of Crown dominions, having either colonially imposed legal systems (Ireland) or previously existing ones (Scotland); and supra n. 3 at 21. Supra n. 3 at 22. The Court also acknowledged (ibid. at 41) that ‘[i]t is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel.’ Ibid. at 15^6; St. Cyr, 533 US at 301^302; and Felker v Turpin, 518 US 651, 663^64 (1996).


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the unique status of Guantanamo Bay and the particular dangers of terrorism in the modern age, the common-law courts simply may not have confronted cases with close parallels to this one’.62 Freed from strict historicism, the majority thus turned to an integrated historical and principled approach.63 First, looking at the American and English precedents, the territorial reach of habeas did not appear to rest on formal notions of sovereignty or national boundaries. Instead, prudential considerations seemed to be determinative of that scope, supporting a functional doctrine of effective control of territory. Second, the effective control doctrine itself was bound up with constitutional values of personal liberty and separation of powers, which denied the executive arbitrary and legally unaccountable power in territories it might de facto govern. Neither liberty nor the separation doctrine was compatible with a legal ‘black hole’. The Supreme Court accepted the Government’s contention that the determination of de jure sovereignty was a political question that courts ought not to second guess.64 Nevertheless, as the majority continued, ‘this does not end the analysis. Our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory.’65 De jure sovereignty was not ‘the touchstone of habeas corpus jurisdiction’.66 Otherwise, the Government could manage places under its total control, like Guantanamo Bay, ‘without legal constraint’.67 The Court explained: Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President power to acquire, dispose of, and govern territory, not the power to decide when and where its 62 63

Supra n. 3 at 22. As Halliday and White, supra n. 53 at 581, write from a critical disciplinary perspective of history: Because the writ has come to provide a means by which we might protect modern liberal assumptions concerning individual rights, historians have assumed that explaining the writ’s history requires that we see its origins in ideas about liberty that look like our own. One can understand the resonance of this assumption for Americans today, for it is consistent with a conception of the writ of habeas corpus as a synecdoche for modern liberal ideas. In that idealized version of habeas corpus, the history of the writ becomes a history of the ever-greater manifestation of ideals of fairness, due process, and humanitarianism associated with the ‘A nglo-American tradition’ of justice under law.

64 65 66 67

They go on, however, at 700, to clarify that their article ‘is primarily a work of historical scholarship. Although we do believe that history does and should inform present concerns, we also believe that history does not control the future.’ A similar historical and principled approach was taken by the Boumediene majority, in contrast to the historically bound, originalist approach of Scalia J, dissenting. Supra n. 3 at 24^5. See First National City Bank v Banco Nacional de Cuba, 406 US 759 (1972); and Banco Nacional de Cuba v Sabbatino, 376 US 398 (1964). Supra n. 3 at 23^4. Ibid. (slip op., at 25). Ibid. at 35.

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terms apply . . ..Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say ‘what the law is.’ Marbury v. Madison, 1 Cranch 137, 177 (1803). These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.68 To deny jurisdiction would therefore violate the separation of powers by granting too much power to the executive, disrupting careful checks and balances between the branches. Because the Suspension Clause had to be interpreted consistently with liberty and the separation of powers principles,69 the Court had little trouble in applying the logic of Rasul to the constitutional issue. It was therefore able to distinguish decisions such as Eisentrager based upon prudential considerations that contra-indicated effective territorial control under the circumstances of that earlier case.70 The Court therefore concluded that 68 69 70

Ibid. at 35^6. Ibid. at 25. See generally the discussion of the Insular Cases, at supra n. 3 26^32, as well as Reid v Covert, 354 US 1 (1957); at ibid. at 25^34. See especially the Court’s discussion of Eisentrager, 339 US 763 (habeas jurisdiction did not extend to enemy aliens detained abroad and convicted of violating the laws of war by an American military commission): ibid. at 32^3, 37^40. Eisentrager was the Government’s main authority for a ‘formalistic, sovereignty-based test for determining the reach of the Suspension Clause’; Ibid. at 32^3. The Court drew attention to the fact that, in that case, petitioners were aliens imprisoned in Allied-occupied Germany, which was neither de jure US territory nor under its plenary control. Rejecting the Government’s interpretation of Eisentrager, the Court found ibid. (slip op., at 34), that: Nothing in Eisentrager says that de jure sovereignty is or ever had been the only relevant consideration in determining the geographic reach of the Constitution or of habeas corpus. . . . A constricted reading of Eisentrager overlooks what we see as a common thread uniting [the relevant authorities]: the idea that questions of extraterritoriality turn on objective factors and practical concerns, not formalism. Kennedy Js approach fits with a ‘due process’ interpretation of extra territorial rights, which are contextually dependent on circumstances and multiple factors such as the prudential concerns he identifies in Boumediene. See Neuman, ‘Extraterritorial Rights and Constitutional Methodology after Rasul v Bush’, (2005) 153 University of Pennsylvania Law Review 2073, and Roosevelt III, ‘Guantanamo and the Conflict of Laws: Rasul and Beyond’ (2004) 153 University of Pennsylvania Law Review 2017. This functional analysis is in keeping


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‘Guantanamo Bay . . . is no transient possession. In every practical sense Guantanamo is not abroad; it is within the constant jurisdiction of the United States.’71 For that reason, the Suspension Clause applied. Boumediene thus encouraged judicial access to prisoners whenever they might be detained by American officials on foreign territory effectively controlled by the United States.

B. Effective Control of the Person The doctrine of effective control, as the Boumediene framework indicates, is also bound up with consideration of a detainee’s personal status, most prominently that of citizenship. The Supreme Court considered the personal status of the petitioners in Boumediene, all of whom were aliens contesting their designation as ‘enemy combatants’. American citizens in custody of the United States have a statutory right to the writ regardless of location, by virtue of citizenship and being in the custody of executive officials.72 Similarly, foreigners have always had a statutory right to habeas when held on American territory, which Rasul and Boumediene extended to Guantanamo (the latter constitutionally).73 Alien status thus apparently triggers a secondary inquiry into the degree of American control over de jure foreign territory, to which the presumption against extraterritorial jurisdiction normally applies. However, where citizenship initially would be controversial, a judicial review of disputed facts is required. Moreover, in both Rasul and Boumediene the Government contended that enemy combatant aliens were also exempt from habeas jurisdiction, a jurisdictional position again arguing for some initial judicial inquiry into enemy combatant status.74 Otherwise, simple judicial acceptance of or over deference to governmental assertions as to alien or other personal status could possibly disengage the courts altogether, perhaps mistakenly denying habeas review to a person entitled to it. Any factual review of personal status attendant upon the jurisdictional determination, however, might require the court to approach the merits of the case before it had even concluded its power to do so.

71 72 73 74

with United States v Verdugo-Urquidez, 494 US 259 (1990) (the Fourth Amendment does not apply to searches and seizures conducted against aliens outside of the United States), where the majority (including Kennedy, concurring) substantially based its decision on the practicable concerns of extending the Bill of Rights to Government actions against aliens in foreign countries. Supra n. 3 at 39, citing Rasul, 542 US at 480 and at 487 (Kennedy, concurring). See Fallon and Meltzer, ‘Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror’, (2007) 120 Harvard Law Review 2029 at 2053^5. Ibid. at 2055. The Government had previously, and unsuccessfully, made this argument in regard to an American citizen detained as an enemy combatant in Hamdi, 542 US 507.

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For example, the Boumediene Court seemed prepared to decline habeas jurisdiction as long as the detainees’ status as enemy combatants had been reached through adequate procedures. The Court distinguished the military trials of the Eisentrager petitioners from the latter status determinations of those in Boumediene.75 The Court pointed out that the petitioners in Boumediene were designated enemy combatants by status tribunals that ‘fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review’.76 The Court therefore presumed an answer to the substantive and procedural questions before it; that is, that petitioners were entitled to either the writ itself or some adequate substitute to determine that they were in fact enemy combatants legally detained. The Court’s assessment of the status determinations delved into merits review, in so far as it looked towards the establishment of the predicate facts justifying detention and the detainees’ claimed constitutional rights of due process.77 The court’s jurisdictional inquiry in this way also somewhat confusingly overlapped with the other issue in the case, which was whether the MCA procedures had indeed violated the Suspension Clause. Some confusion between jurisdictional inquiry and merits review, which could arise from questions about citizenship or other personal status, might be symptomatic of the Supreme Court’s new functional approach, pushing beyond easy, formalistic jurisdictional boundary markers. The best reading of Boumediene, then, is that federal courts will exercise jurisdiction equally over both citizens and aliens whenever and wherever the United States has effective control of territory. Personal status would then be a more appropriate factor in determining a petitioner’s substantive and procedural rights cognisable upon a merits review, and would partly determine the lawful authority of the executive to detain an individual under the circumstances of the case: for example, non-citizens vis-a'-vis citizens or POWs vis-a'-vis enemy combatants. Accordingly, while Boumediene settled that aliens at Guantanamo Bay had a 75 76 77

‘The difference is not trivial’, supra n. 3 at 37. Ibid. Vladeck, ‘The Suspension Clause as a Structural Right’, (2008) 62 University of Miami Law Review 275, argues that Eisentrager, 339 US 763, similarly confused the threshold jurisdictional inquiry with the determination of petitioners’ rights. To sort out this confusion, Vladeck proposes, at 298, that ‘[t]he far more tenable reading of Eisentrager is as holding that, because the petitioners’ claims lacked merit, the district court’s interpretation of the habeas statute as precluding jurisdiction did not raise any Suspension Clause concerns. Habeas should have been available, but only for the courts to do what the Supreme Court eventually did ^ deny the Eisentrager petitioners’s claims on the merits.’ [footnotes omitted.] This reading of the case differs from the Boumediene majority, which read the Eisentrager Court to have found against jurisdiction based upon prudential considerations that contraindicated effective control. On the other hand, Vladeck’s interpretation of Eisentrager shows that a broader interpretation of extra-territorial habeas jurisdiction does not prevent a subsequent merits finding that aliens might be lawfully detained abroad or otherwise have no rights to enforce upon a habeas petition. This two-step approach would balance the need for judicial review with appropriate deference to the political branches in national security concerns.


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constitutional right to the writ, and that the MCA review procedures were not an adequate habeas substitute under the Suspension Clause, the Supreme Court did not conclude just what procedural or substantive rights they otherwise had to enforce in regard to their status determinations or possible military trials.78 Those issues would require exploration at the District Court level during the merits stage of habeas hearings. Boumediene, therefore, was not the alien’s equivalent of Hamdi, which set out the constitutional due process to which citizens were entitled before their designation and detention as an enemy combatant might be lawful.79 Nevertheless, as a jurisdictional decision, Boumediene extends habeas to anyone within the effective territorial control of the United States in a way that seems to reduce the need for this kind of preliminary inquiry into personal status and the procedures used to determine it. Alternatively, because US citizens are entitled to habeas whenever they are in physical custody, it is only when an alien is seeking habeas that this jurisdictional inquiry into the effective control of territory becomes necessary. Whether federal courts will prefer to address the question of territorial control or citizenship first remains to be seen, and will likely depend on which of these issues are conceded or disputed in any particular case. Still, while a court might sometimes have to resolve disputed citizenship 78

79

Supra n. 3 at 69: ‘It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined.’ The Court, (ibid. at 68 and 59), clarified that its jurisdictional decision did not foreclose a finding for the Government on the merits: ‘In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches . . .. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security.’ See In re Territo, 156 F. 2d 142 (9th Cir. 1946) (US citizen’s detention as a POW for serving in enemy armed forces was lawful); Quirin, 317 US 1 (1942) (US citizen was lawfully convicted by military commission for violations of the laws of war); and In re Yamashita, 327 US 1 (1946) (alien petitioner was lawfully convicted by military commission for violations of the laws of war). Accordingly, ‘[j]urisdiction is a threshold issue that functions as an on-off switch. The meaning of the ‘‘off’’ position is clear: the petition must be dismissed. But the meaning of the ‘‘on’’ position can vary greatly: review can range from de novo judicial decision of all pertinent questions of fact and law to a highly deferential inquiry into only some aspects of prior, nonjudicial determinations.’ See Fallon and Meltzer, supra n. 72 at 2049. Thus, as suggested by Vladeck’s reading of Eisentrager (ibid.), a court’s jurisdictional inquiry must be distinguished from review on the merits. This more permissive approach to habeas-type jurisdiction does not foreclose a subsequent finding at the merits stage that an alien detained abroad has less or no rights compared to a citizen: see Verdugo-Urquidez, 494 US 259. See also Martinez, ‘Process and Substance in the ‘‘War on Terror’’’(2008) 108 Columbia Law Review 1013. Guantanamo detainees can therefore use the writ of habeas corpus to challenge the procedural mechanisms and substantive criteria used in the Government determination of their enemy combatant status. If these are legally sound, any subsequent habeas petitions from those so designated could be quickly dismissed, reducing the risk of unmanageable and meritless claims that could interfere with military operations. Counsel for the petitioners in Boumediene conceded this in oral argument: see supra n. 42. Shortly after the decision in Boumediene, however, in Al-Marri, supra n. 39, a plurality of the Fourth Circuit Court of Appeals partially relied on Verdugo-Urquidez, ibid., in finding on the habeas merits that a lawfully resident Qatari, held in military custody in the United States as an enemy combatant, was entitled to due process in his status determination. The case is currently on appeal to the Supreme Court: see supra n. 39.

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claims at the jurisdictional stage of review, it would not have to consider other more contentious status issues that might touch upon the merits. Some attention to citizenship is necessary, however, because American law does indeed give privileged access to federal courts for US citizens detained abroad and seeking habeas relief. Munaf v Green,80 decided the same day as Boumediene, clearly showed that citizenship would be a factor in assessing jurisdiction based upon effective control of the person himself, rather than just territory. The petitioners were US citizens who had been detained by the US military in Iraq as security threats pursuant to the applicable UN legal regime in Iraq. They sought, through habeas, to enjoin their subsequent transfer to Iraqi custody. The Government argued that as the citizen petitioners were in the custody of the United States owing to their detention under the UN legal regime in place in Iraq they were outside of the federal courts’ habeas jurisdiction. The Government admitted, however, that the petitioners were in the immediate physical custody of the US military, while the UN mission in Iraq operated subject to a unified American command.81 In a unanimous decision, the Court held that the petitioners could be held lawfully and transferred, but nevertheless first found extraterritorial jurisdiction over them without any consideration at all of territorial control. The Justices spent little time in analysing the authority of the UN authority in Iraq when addressing the issue of territorial control. The Court emphasised that the petitioners were American citizens, not aliens, and noted that US forces subject to a chain of command had arrested and maintained physical custody of them. These two facts were sufficient to establish jurisdiction under the US habeas statute, with no need to consider the role of the United Nations.82 The Chief Justice explained: We think these concessions [are] the end of the jurisdictional inquiry. The Government’s argument ^ that the federal courts have no jurisdiction over American citizens held by American forces operating as multinational agents ^ is not easily reconciled with the text of [28 U.S.C.] x2241(c)(1) . . . That section applies to persons held ‘in custody under or by color of the authority of the United States.’ x2241(c)(1). An individual is held ‘in custody’ by the United States when the United States official charged with his detention has ‘‘the power to produce’’ him . . . . The disjunctive ‘or’ in x2241(c)(1) makes clear that actual custody by the United States suffices for jurisdiction, even if that custody would be viewed as ‘under . . . color of’ another authority, such as the [Multinational Force-Iraq.]83 80 81 82 83

Supra n. 6. Ibid. at 8. Ibid. at 10^1. Ibid. at 8^9 [citations omitted].


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The Supreme Court therefore distinguished between effective control of the person, in terms of physical custody by American soldiers (and possibly other government agents), and ultimate responsibility for detention under an international agency or legal framework. At least where American citizens are concerned, then, the degree of territorial control is irrelevant, except in so far as control over a particular locus of detention (such as a prison facility) might be evidence of custody. Whether the UN command structure and legal regime, combined with Iraqi sovereignty, might have been prudential considerations limiting the federal courts’ habeas jurisdiction over aliens remains an open question. The courts would have to impute such a restrictive citizenship distinction into the assessment of ‘custody’ under the habeas statute. Such a distinction would mean that, where effective territorial control did not exist (say because of a superior international military command or legal authority), a court might under equal circumstances find that there was effective personal control over a citizen, but not an alien.84 The US habeas statute aside, whether such a formalistic distinction would be consistent with the Court’s new constitutional doctrine of effective control is debatable.85 That is, the question would remain whether the constitutional right to habeas review would or would not go beyond the control of territory. Even if it does reach this far, it might still be argued on prudential grounds that, where an alien is physically detained by American officials on simultaneously de jure and de facto foreign territory, and there exists some meaningful, alternative opportunities to challenge the legality of the detention through foreign channels, one could then justify refusing jurisdiction based upon alien status (even though it would otherwise be found in respect of a US citizen). Where citizenship itself is in dispute, however, the courts must again be cautious not to consider any other status issues so as unintentionally to confuse jurisdictional and merits review. 84

85

Ibid. at 9^11, distinguishing the decision in Hirota, 338 US 197, as the alien petitioners in that case were neither located in US territory nor were they under exclusive American control due to prior conviction by the International Military Tribunal for the Far East. Noting that ‘the Court has indicated that habeas jurisdiction can depend on citizenship’, ibid. at 10, the Court thereby hinted that the holding in Hirota might have been different had the petitioners been US citizens despite the lack of other indicators of effective control over the place of detention and ultimate Allied command authority. See Huq, ‘The Hirota Gambit’, (2007) 63 New York University Annual Survey of American Law 63. See Vladeck, ‘Deconstructing Hirota: Habeas Corpus, Citizenship, and Article III’, (2007) 95 Georgetown Law Journal 1497, arguing that citizenship is an irrelevant criteria for determining the constitutional reach of habeas jurisdiction, which is based upon the actual physical custody of a person by American officials. He concludes (at 1554): ‘At an irreducible constitutional minimum, then, the federal jurisdiction contemplated by Article III should extend to any case where a habeas petitioner alleges ‘custody in violation of the Constitution or laws or treaties of the United States,’and where the court can fashion meaningful relief against an officer of the United States.’ See also Abu Ali v Ashcroft, 350 F.Supp.2d 28 (DDC 2004), holding that the habeas statute extends jurisdiction to citizens under the ‘constructive custody’ of the United States, where the Government has directed a foreign sovereign power as its agent to detain an individual abroad.

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With Munaf, the Supreme Court employed its new effective control doctrine in a way that blurs distinctions between territorial and personal control, and which potentially makes considerations of citizenship less significant for determining habeas jurisdiction. With this in mind, the Court’s extension of jurisdiction to all persons in the government’s actual custody, regardless of citizenship, would better ensure that the judiciary remains engaged where persons are deprived of fundamental rights to personal liberty and security. This extended extraterritorial jurisdiction would help to prevent abuses like those at Guantanamo Bay, as well as unacceptable practices such as ‘extraordinary rendition’,86 in keeping with the driving legacy of habeas corpus. Such broad habeas jurisdiction, furthermore, would not unduly burden security operations or open the floodgates to foreign litigation, as alien security detainees might have few or no due process rights, permitting prompt dismissals on the merits of those cases arising out of the same or similar circumstances. Extraterritorial jurisdiction based on personal control would therefore eliminate all (or nearly all) ‘black holes’ of legal accountability, while still accommodating national security concerns during merits-stage habeas review.

4. Conclusion After several years, the US Supreme Court has finally and emphatically denied that the executive branch can imprison aliens abroad without any judicial review whatsoever. The Boumediene decision resolves the jurisdictional controversy over Guantanamo Bay, making it clear that the touchstone of federal habeas jurisdiction under the Constitution is not de jure but de facto sovereignty. As a result, wherever the US Government exercises effective control of foreign territory, aliens detained there will be constitutionally entitled to petition for the writ of habeas corpus. Congress can only restrict or suspend habeas for foreigners held abroad in de facto US territory according to the requirements of the Suspension Clause. Boumediene therefore took a functional approach to extraterritorial jurisdiction, based upon the history of habeas corpus in England and America, as well as Anglo-American constitutional principles of personal liberty and separation of powers. This methodology, and the extension of extraterritorial jurisdiction that it led to, was far from an academic exercise, as eloquently explained by Justice Kennedy for the majority: Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus 86

See supra n. 8.


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Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives. Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person.87 Thus, while the demands of national security might caution judicial deference to executive detention decisions, such public concerns are questions going to the merits of habeas review. As for the initial jurisdictional inquiry, however, it is constitutionally imperative that those detained by the executive have meaningful judicial access to challenge the legality of their detention. The Court’s approach to habeas, therefore, was not parochial. This wider Anglo-American legacy of habeas corpus prompted the Court to develop a functional approach to extraterritorial jurisdiction, expressed in a new ‘effective control’ doctrine. The doctrine’s prudential framework, as articulated in Boumediene, is loose and flexible enough to allow a court to look even beyond the effective control of territory, in order to consider the actual control of the place of detention, as well as of the person detained. This common doctrine of effective control therefore potentially expands habeas-type protections over those detained by the American government anywhere around the world. As the Supreme Court has explained, however, wide jurisdictional scope does not necessarily mean that the government will not wield considerable lawful authority to detain individuals on national security grounds, such as with so-called enemy combatants or insurgents. Nevertheless, such authority is to be assessed at the merits, not jurisdictional, stage of habeastype review; this is where the proper balance is to be struck between individual rights and national security concerns. The legacy of habeas, portrayed in Boumediene as originating deep within the Anglo-American legal tradition, will not permit the executive branch to hold individuals arbitrarily and without any legal accountability whatsoever. 87

Supra n. 3 at 68^9.

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This note has not addressed at any length the powers of Congress to restrict or suspend habeas-type review formally under the Suspension Clause, an issue broached but not fully addressed by the Supreme Court in Boumediene. However, taking into consideration the normative value of the habeas legacy, federal courts should at the least be cautious in their review of the national security justifications for congressional attempts to suspend the writ, requiring an explicit legislative declaration to that effect and constitutionally uphold any such restrictions subject to some kind of proportionality analysis. In the absence of suspension under these broad standards, courts should exercise jurisdiction whenever and wherever the government has effective control over the place of detention, or even just the person detained. National security is not the only concern at stake when the government decides to limit judicial access to allegedly dangerous individuals: fundamental principles of personal liberty and the separation of powers are, too. Consequently, to disrespect the legacy of the Great Writ can lead not only to legal ‘black holes’ like Guantanamo, but also risk destabilising the rule of law itself.