Constitutional vs. Statutory Habeas Rights

There exist two habeas rights, one constitutional and the other statutory.

First, constitutional habeas corpus comes from Article 1, section 9, clause 2 which 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.”

Unfortunately, like most provisions of the Constitution, it means both more and less than the plain text would indicate. This is because courts have always relied on the common law notion of the writ of habeas corpus to determine just who is protected by constitutional habeas corpus.

The most recent example of that comes from the most recent Hamdan case (PDF), where Salim Ahmed Hamdan was denied constitutional habeas because he did not have a sufficient connection with the United States and denied statutory habeas because the MCA 2006 prevents the federal courts from hearing enemy combatant alien petitions. Judge Robertson wrote:

It has long been the practice of judges to ascertain the “meaning of the term habeas corpus [by reference to] the common law.” … [H]is connection to the United States lacks the geographical and volitional predicates necessary to claim a constitutional right to habeas corpus. … Presence within the exclusive jurisdiction and control of the United States was enough for the Court to conclude in Rasul that the broad scope of the habeas statute covered Guantanamo Bay detainees, but the detention facility lies outside the sovereign realm, and only U.S. citizens in such locations may claim entitlement to a constitutionally guaranteed writ.

The statutory habeas right. The first Congress, exercising it’s jurisdictional power over Article III courts, gave to them the authority to hear habeas petitions from within their territorial jurisdictions. At that time, no distinction was made in statute between citizens or aliens. The only requirement was that the petitioner have a sufficent connection with the jurisdiction.

That original habeas statute has been modified many times over the years, but it resides at 28 U.S.C. sec. 2241 currently. This was the section that was changed by the MCA 2006 to exclude “enemy combatant aliens.” From the signing of the MCA 2006 forward, the statutory habeas right was limited to U.S. citizens, or non-enemy aliens (providing, of course, they come within the territorial jurisdiction of the courts).

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~ by Gabriel Malor on June 12, 2008.

 
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