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In In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443 (D.D.C. 2005), Judge Joyce Hens Green addressed eleven coordinated habeas cases involving 56 aliens being detained by the United States as “enemy combatants” at Guantanamo Bay, id. at 445. These detainees are citizens of friendly nations — Australia, Bahrain, Canada, Kuwait, Libya, Turkey, the United Kingdom, and Yemen — who were seized in Afghanistan, Bosnia and Herzegovina, The Gambia, Pakistan, Thailand, and Zambia. Each detainee maintains that he was wrongly classified as an “enemy combatant.” Denying in part the government’s motion to dismiss the petitions, the district court ruled:
[T]he petitioners have stated valid claims under the Fifth Amendment to the United States Constitution and … the procedures implemented by the government to confirm that the petitioners are “enemy combatants” subject to indefinite detention violate the petitioners’ rights to due process of law.
Id. at 445. The district court further ruled that the Taliban but not the al Qaeda detainees were entitled to the protections of the Third and Fourth Geneva Conventions. Id. at 478-80.
In Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005), Judge Richard J. Leon considered the habeas petitions of five Algerian-Bosnian citizens and one Algerian citizen with permanent Bosnian residency. They were arrested by Bosnian police in 2001 on suspicion of plotting to attack the United States and British embassies in Sarajevo. After the Supreme Court of the Federation of Bosnia and Herzegovina ordered the six men to be released in January 2002,[11] they were seized by United States forces and transported to Guantanamo Bay. The Khalid decision also covers the separate case of a French citizen seized in Pakistan and transported to Guantanamo Bay. Rejecting the petitioners’ claim that their detention is unjustified, the district court ruled that “no viable legal theory exists by which [the district court] could issue a writ of habeas corpus under” the circumstances presented, id. at 314, noting the President’s powers under Article II, Congress’s Authorization for the Use of Military Force (“AUMF”), and the Order on Detention (Nov. 13, 2001), see id. at 317-20. The district court granted the government’s motion and dismissed the petitions. Id. at 316.
The fundamental question presented by a petition for a writ of habeas corpus is whether Executive detention is lawful. A far more difficult question is what serves to justify Executive detention under the law. At the margin, the precise constitutional bounds of Executive authority are unclear, see Hamdan, 126 S. Ct. at 2773-74; id. at 2786 (citing Ex parte Quirin, 317 U.S. 1, 28 (1942)), and the Executive detention at issue is the product of a unique situation in our history. Unlike the uniformed combat that is contemplated by the laws of war, see generally William Winthrop, Military Law and Precedents (2d ed. 1920), the Geneva Conventions, e.g., Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, and the Constitution, see U.S. Const. art. I, § 8, cl. 11, the United States confronts a stateless enemy in the war on terror that is difficult to identify and widely dispersed. See Hamdi, 519 U.S. at 519-20.
The parties recite in their several briefs the substantial competing interests of individual liberty and national security that are at stake, much as did the Supreme Court in Hamdi, 542 U.S. at 529-32 (plurality opinion); see id. at 544-45 (Souter, J., joined by Ginsburg, J., concurring in part, dissenting in part, and concurring in the judgment). In Hamdi, the plurality acknowledged that “core strategic matters of warmaking belong in the hands of those who are best positioned and most politically accountable for making them.” Id. at 531. At the same time, it acknowledged that for Hamdi “detention could last for the rest of his life.” Id. at 520. Although Hamdi was a United States citizen, the premise underlying the conclusion that there is a role for the judiciary, id. at 532-33, was that “history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat,” id. at 530. In short, the nature of the conflict makes true enemies of the United States more troublesome. At the same time, the risk of wrongful detention of mere bystanders is acute, particularly where, as here, the Executive detains individuals without trial.
Parsing the role of the judiciary in this context is arduous. The power of the President is at its zenith, after all, when the President acts in the conduct of foreign affairs with the support of Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring). Even assuming the AUMF and the Order on Detention provide such support for the detentions at issue, still the President’s powers are not unlimited in wartime. See, e.g., Milligan, 71 U.S. (4 Wall.) at 125. The Founders could have granted plenary power to the President to confront emergency situations, but they did not; they could have authorized the suspension of habeas corpus during any state of war, but they limited suspension to cases of “Rebellion or Invasion.” U.S. Const. art. I, § 9, cl. 2; see 2 Story, supra, § 1342; see also 2 The Records of the Federal Convention of 1787, supra, at 341 (proposal of Charles Pinckney). Even in 1627, at a time when “[a]ll justice still flowed from the king [and] the courts merely dispensed that justice,” Duker, supra, at 44, the idea that a court would remand a prisoner merely because the Crown so ordered (“per speciale mandatum Domini Regis”) was deemed to be inconsistent with the notion of a government under law. See Darnel’s Case, 3 Howell’s St. Tr. 1, 59 (K.B. 1627); Meador, supra, at 13-19. While judgments of military necessity are entitled to deference by the courts and while temporary custody during wartime may be justified in order properly to process those who have been captured, the Executive has had ample opportunity during the past five years during which the detainees have been held at Guantanamo Bay to determine who is being held and for what reason. See, e.g., Hamdan, 126 S. Ct. at 2773; cf. Hamdi, 542 U.S. at 521.
Throughout history, courts reviewing the Executive detention of prisoners have engaged in searching factual review of the Executive’s claims. In Bollman, the Supreme Court reviewed a petition of two alleged traitors accused of levying war against the United States. The petitioners were held in custody by the marshal but had not yet been charged. 8 U.S. (4 Cranch) at 75-76, 125. After the “testimony on which they were committed [was] fully examined and attentively considered,” the Court ordered the prisoners released. Id. at 136-37. The 1759 English case of Rex v. Schiever, discussed supra Part I.C.1, also shows that habeas courts scrutinized the factual basis for the detention of even wartime prisoners. In Schiever, the court reviewed the prisoner’s affidavit and took further testimony from a witness, who “sw[ore] that Schiever was forced against his inclination … to serve on board [the French privateer].” 2 Burr. at 766, 97 Eng. Rep. at 551. Nonetheless, to the court it was clear that Schiever had, in fact, fought against England. As such, “the Court thought this man, upon his own shewing, clearly a prisoner of war and lawfully detained as such. Therefore they Denied the motion.” Id., 97 Eng. Rep. at 552 (footnote omitted). Similar themes and factual inquiry appear in Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775, in which three alien petitioners submitted affidavits during wartime but failed to convince the court that they were not enemies of the Crown, and Goldswain’s Case, 5 Black. W. 1207, 96 Eng. Rep. 711 (C.P. 1778), in which a wrongly impressed Englishman was released from service during wartime. See also Beeching, 4 B. & C. 137, 107 Eng. Rep. 1010.
In the early history of the United States, two cases further suggest that factual review accompanied even writs during wartime. In United States v. Williams (C.C.D. Va. Dec. 4, 1813), a previously unreported case researched for a recent essay in The Green Bag, Chief Justice John Marshall, riding circuit, released an enemy alien from detention by civil authorities. The Chief Justice concluded that “the regulations made by the President of the United States respecting alien enemies [did] not authorize the confinement of the petitioner in this case.” Neuman & Hobson, supra, at 42 (quoting the circuit court’s order book). A majority of the Supreme Court of Pennsylvania, in Lockington’s Case, 1 Brightly’s (N.P.) 269 (Pa. 1813), agreed that alien enemies were entitled to a judgment on the merits as to whether their detention was justified,[12] and thereafter remanded the prisoners. Id. at 283-84 (Tilghman, C.J.); id. at 285, 293 (Yeates, J.).
The government maintains that a series of World War II-era cases undercuts the proposition that habeas review of uncharged detainees requires a factual assessment. It cites several cases in which courts have refused to engage in factual review of the findings of military tribunals imposing sentences under the laws of war. See, e.g., Eisentrager, 339 U.S. 763; In re Yamashita, 327 U.S. 1 (1945); Quirin, 317 U.S. at 25. There is good reason to treat differently a petition by an uncharged detainee — who could be held indefinitely without even the prospect of a trial or meaningful process — from that of a convicted war criminal. See Rasul, 542 U.S. at 476; Omar v. Harvey, No. 06-5126, slip op. at 13 (D.C. Cir. Feb. 9, 2007); see also supra note 9. For example, in Yamashita, the prisoner petitioned for a writ of habeas corpus only after a trial before a military tribunal where his six attorneys defended against 286 government witnesses. 327 U.S. at 5. Quirin involved a military commission, see 317 U.S. at 18-19, where the government presented “overwhelming” proof that included confessions from the German saboteurs. Pierce O’Donnell, In Time of War 152-53, 165-66, 189 (2005). In Eisentrager, 339 U.S. at 766, the military tribunal conducted a trial lasting months. By contrast, the detainees have been charged with no crimes, nor are charges pending. The robustness of the review they have received to date differs by orders of magnitude from that of the military tribunal cases.[13]
The Supreme Court in Rasul did not address “whether and what further proceedings may become necessary after respondents make their responses to the merits of petitioners’ claims,” 542 U.S. at 485. The detainees cannot rest on due process under the Fifth Amendment. Although the district court in Guantanamo Detainee Cases, 355 F. Supp. 2d at 454, made a contrary ruling, the Supreme Court in Eisentrager held that the Constitution does not afford rights to aliens in this context. 339 U.S. at 770; accord Verdugo-Urquidez, 494 U.S. at 269. Although in Rasul the Court cast doubt on the continuing vitality of Eisentrager, 542 U.S. at 475-79, absent an explicit statement by the Court that it intended to overrule Eisentrager’s constitutional holding, that holding is binding on this court. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); Op. at 21. Rather, the process that is due inheres in the nature of the writ and the inquiry it entails. The Court in Rasul held that federal court jurisdiction under 28 U.S.C. § 2241 is permitted for habeas petitions filed by detainees at Guantanamo, 542 U.S. at 485; id. at 488 (Kennedy, J., concurring in the judgment), and this result is undisturbed because the MCA is void. So long as the Executive can convince an independent Article III habeas judge that it has not acted unlawfully, it may continue to detain those alien enemy combatants who pose a continuing threat during the active engagement of the United States in the war on terror. See id. at 488 (Kennedy, J., concurring in the judgment); cf. Hamdi, 542 U.S. at 518-19. But it must make that showing and the detainees must be allowed a meaningful opportunity to respond. See Meador, supra, at 18; see also Hamdi, 542 U.S. at 525-26.
Therefore, I would hold that on remand the district courts shall follow the return and traverse procedures of 28 U.S.C. § 2241 et seq. In particular, upon application for a writ of habeas corpus, 28 U.S.C. § 2242, the district court shall issue an order to show cause, whereupon “[t]he person to whom the writ is or order is directed shall make a return certifying the true cause of the detention,” id. § 2243. So long as the government “puts forth credible evidence that the [detainee] meets the enemy-combatant criteria,” Hamdi, 542 U.S. at 533, the district court must accept the return as true “if not traversed” by the person detained. Id. § 2248. The district court may take evidence “orally or by deposition, or, in the discretion of the judge, by affidavit.” Id. § 2246. The district court may conduct discovery. See Harris, 394 U.S. at 298-99; cf. Rules Governing Section 2254 Cases, R. 6-8; Rules Governing Section 2255 Cases, R. 6-8. Thereafter, “[t]he [district] court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.”[14] District courts are well able to adjust these proceedings in light of the government’s significant interests in guarding national security, as suggested in Guantanamo Detainee Cases, 355 F. Supp. 2d at 467, by use of protective orders and ex parte and in camera review, id. at 471. The procedural mechanisms employed in that case, see, e.g., id. at 452 & n.12, should be employed again, as district courts must assure the basic fairness of the habeas proceedings, see generally id. at 468-78.
Accordingly, I respectfully dissent from the judgment vacating the district courts’ decisions and dismissing these appeals for lack of jurisdiction.