The following is an article written by California Republican Lawyers Association and Riverside attorney Richard Brent Reed that appeared in yesterday's Los Angeles Daily Journal.  Happy 4th of July!

 "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."  --  U. S. Constitution, Article I, Section 9 (2)    (The Suspension Clause)

 
Following the terrorist attacks of September 11, 2001, U. S. armed forces invaded Afghanistan to snuff out al Qaeda along with the Taliban government that nurtured that terrorist organization.  The Department of Defense set up Combatant Status Review Tribunals (CSRT) to determine whether or not the Guantanmo detainees captured in Afghanistan, and elsewhere abroad, were "enemy combatants".  Subsequently, two, later consolidated, cases were brought by detainees: Rasul v. Bush and  Al Odah v. United States.  To head off these applications for habeas corpus, Congress passed the Detainee Treatment Act of 2005, which stated that "no court, justice, or judge shall have jurisdiction to . . . consider . . . an application for . . . habeas corpus filed by or on behalf of an alien detained . . . at Guantanamo", or so Congress thought. The Supreme Court parried with Hamdi v. Rumsfeld, overriding the DTA, and Congress countered with the Military Commission Act (MCA), even more explicitly denying the privilege of habeas corpus to enemy combatants.  On June 12, 2008, the Supreme Court dealt the final blow in Boumediene v. Bush, granting habeas corpus to enemy combatants, Congress notwithstanding.
 
Declaratory Relief
 
Justice Kennedy, opining for the Boumediene majority, suggested that providing a judicial forum to detainees was vital to preserving limited government. But, American courts were not squeamish about withholding habeas corpus from the enemy during or following World War II.  Justice Kennedy, considering the jurisprudence of those days, noted that "in holding that habeas jurisdiction did not extend to enemy aliens, convicted of violating the laws of war, who were detained in a German prison during the Allied Powers' post-World War II occupation, the Court, in Johnson v. Eisentrager, stressed the practical difficulties of ordering the production of the prisoners..."  Justice Kennedy concludes, "The situation in Eisentrager was far different, given the historical context and nature of the military's mission in post-War Germany."

One difference is made clear by the language of Article I, Section 8 (11) of the Constitution, which states that Congress shall have power to "declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water".  (Regarding the Guantanamo prisoners, Congress made a rule--the Detainee Treatment Act--but, that rule was overruled.)  A narrow reading of Article I, Section 8 would vest exclusive jurisdiction in Congress only in the context of a declaration of war or the issuance of letters of marque and reprisal.  Such was the context of Ex Parte Quirin..
 
Operation Pastorius
 
The year was 1942; World War II was in full swing, Japan and Germany having declared war on the U. S. in December of 1941.  At a spy school somewhere near Berlin, seven saboteurs-- Werner Thiel, Herman Neubauer, Edward Kerling, Herbert Haupt, Heinrich Heinck, Ernest  Burger, and Richard Quirin--began their deadly training.  In June, 1942, the saboteurs were handed heaps of American dollars and were instructed to keep their uniforms on until they reached America..

The saboteurs, then, went to occupied France where Burger, Heinck, and Quirin met up with a man named George Dasch and boarded a German U-boat which deposited all of them on Long Island, New York during the night of June 13, 1942.   Thiel, Neubauer, Kerling, and Haupt boarded another German submarine bound for Florida.  They landed at Ponte Vedra Beach, Florida on June 17.  The saboteurs carried with them explosives, fuses, timers, and plenty of greenbacks.  Burger, Heincke, and Quirin buried their uniforms on Abagansett Beach and, in civilian dress, headed for The Big Apple.  Thiel, Neubauer, Kerling, and Haupt likewise dawning civilian garb, made their way to Jacksonville, and headed for Chicago and New York.  Their mission was to blow up factories and installations vital to the war effort.

Before one bomb could be planted, however, the FBI captured the entire gang of saboteurs and handed them over to the Provost Marshal in Washington, D. C. who, at the direction of the Secretary of War, held them for trial before a Military Commission that was appointed by President Roosevelt on July 2.  On the following day, the saboteurs were charged by the Judge Advocate General with violation of the law of war and spying, among other things.
The prisoners lost no time in petitioning the court--Ex Parte Quirin 317 U.S. 1 (1942)--for a Writ of Habeas Corpus.  The D. C. District Court denied the petition, as did the Supreme Court, which explained its decision:

We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries, and were held in good faith for trial by military commission, charged with being enemies who, with the purpose of destroying war materials and utilities, entered or after entry remained in our territory without uniform-an offense against the law of war. We hold only that those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission...

Everybody Out
 
Ex Parte Quirin and Johnson v. Eisentrager are distinguished from Boumediene v. Bush in two important particulars: Quirin and Eisentrager had full, adversarial trials, whereas Boumediene had only a CSRT review and; Congress had declared war in Quirin and in Eisentrager, but not in Boumediene.  (Wars were, traditionally, conducted by declaration before 1950.)  As stated on page 17 of the Boumediene Opinion, "To the extent . . . authorities suggest the common-law courts abstained altogether from matters involving prisoners of war, there was greater justification for doing so in the context of declared wars with other nation states."  Therefore, a declaration of war on Afghanistan would have placed prisoner jurisdiction, as found in Article I, Section 8, squarely in Congress.  The holding in Eisentrager states, on page 775: "A resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a 'declared war' exists.  Courts will entertain his plea for freedom from executive custody only to ascertain the existence of a state of war and whether he is an alien enemy.  Once these jurisdictional facts have been determined, courts will not inquire into any other issue as to his internment." For the Guantanamo detainees, the absence of a declaration of war or a formal suspension of habeas corpus left a loophole as wide as a prison door.

The Supreme Court's decision leaves the U. S. Army no safe haven for the incarceration of its prisoners of war.  In order to ensure that captured enemy combatants are not returned to the field, the army may have to resort to a "take no prisoners" policy or, if prisoners must be taken, to rendition them to some foreign jurisdiction.  In the Boumediene decision, the Supreme Court discussed federal law, international law, the law of war, and even the ancient traditions of English common law.  But the Court's analysis omitted one very important statute: the Law of Unintended Consequences.