Boumediene v. Bush/DO1A

A.

The court holds that Congress may suspend habeas corpus as to the detainees because they have no individual rights under the Constitution. It is unclear where the court finds that the limit on suspension of the writ of habeas corpus is an individual entitlement. The Suspension Clause itself makes no reference to citizens or even persons. Instead, it directs that “[t]he 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. Const. art. I, § 9, cl. 2. This mandate appears in the ninth section of Article I, which enumerates those actions expressly excluded from Congress’s powers. Although the Clause does not specifically say so, it is settled that only Congress may do the suspending. Ex parte Bollman, 8 U.S. (4 Cranch) 75, 101 (1807); see Hamdi v. Rumsfeld, 542 U.S. 507, 562 (2004) (Scalia, J., dissenting); Ex parte Merryman, 17 F. Cas. 144, 151-152 (No. 9487) (Taney, Circuit Justice, C.C.D. Md. 1861); 2 Joseph Story, Commentaries on the Constitution of the United States § 1342 (5th ed. 1891). In this manner, by both its plain text and inclusion in section 9, the Suspension Clause differs from the Fourth Amendment, which establishes a “right of the people,” the Fifth Amendment, which limits how a “person shall be held,” and the Sixth Amendment, which provides rights to “the accused.” These provisions confer rights to the persons listed.^[1]

The other provisions of Article I, section 9, indicate how to read the Suspension Clause. The clause immediately following provides that “[n]o Bill of Attainder or ex post facto Law shall be passed.”^[2] The Supreme Court has construed the Attainder Clause as establishing a “category of Congressional actions which the Constitution barred.” United States v. Lovett, 328 U.S. 303, 315 (1946). In Lovett, the Court dismissed the possibility that an Act of Congress in violation of the Attainder Clause was non-justiciable, remarking:

Our Constitution did not contemplate such a result. To quote Alexander Hamilton,

* * * a limited constitution * * * [is] one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like.

Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Id. at 314 (quoting The Federalist No. 78) (emphasis added) (alteration and omissions in original). So too, in Weaver v. Graham, 450 U.S. 24, 28-29 & n.10 (1981), where the Court noted that the ban on ex post facto legislation “restricts governmental power by restraining arbitrary and potentially vindictive legislation” and acknowledged that the clause “confin[es] the legislature to penal decisions with prospective effect.” See also Marbury, 5 U.S. (1 Cranch) at 179-80; Foretich v. United States, 351 F.3d 1198, 1216-26 (D.C. Cir. 2003). For like reasons, any act in violation of the Suspension Clause is void, cf. Lovett, 328 U.S. at 316, and cannot operate to divest a court of jurisdiction.^[3]

The court dismisses the distinction between individual rights and limitations on Congress’s powers. It chooses to make no affirmative argument of its own, instead hoping to rebut the sizable body of conflicting authorities.

The court appears to believe that the Suspension Clause is just like the constitutional amendments that form the Bill of Rights.^[4] It is a truism, of course, that individual rights like those found in the first ten amendments work to limit Congress. However, individual rights are merely a subset of those matters that constrain the legislature. These two sets cannot be understood as coextensive unless the court is prepared to recognize such awkward individual rights as Commerce Clause rights, see U.S. Const. art. I, § 8, cl. 3, or the personal right not to have a bill raising revenue that originates in the Senate, see U.S. Const. art. I, § 7, cl. 1; see also Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 224 (1974) (finding no individual right under the Ineligibility Clause).

That the Suspension Clause appears in Article I, section 9, is not happenstance. In Charles Pinckney’s original proposal, suspension would have been part of the judiciary provision. It was moved in September 1789 by the Committee on Style and Arrangement, which gathered the restrictions on Congress’s power in one location. See William F. Duker, A Constitutional History of Habeas Corpus 128-32 (1980); 2 The Records of the Federal Convention of 1787, at 596 (Max Farrand ed., rev. ed. 1966). By the court’s reasoning, the Framers placed the Suspension Clause in Article I merely because there were no similar individual rights to accompany it. It is implausible that the Framers would have viewed the Suspension Clause, as the court implies, as a budding Bill of Rights but would not have assigned the provision its own section of the Constitution, much as they did with the only crime specified in the document, treason, which appears alone in Article III, section 3. Instead, the court must treat the Suspension Clause’s placement in Article I, section 9, as a conscious determination of a limit on Congress’s powers. The Supreme Court has found similar meaning in the placement of constitutional clauses ever since McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 419-21 (1819) (Necessary and Proper Clause); see also, e.g., Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 220-21 (1989) (Taxing Clause).

The court also alludes to the idea that the Suspension Clause cannot apply to foreign military conflicts because the exception extends only to cases of “Rebellion or Invasion.” Op. at 21 n.11. The Framers understood that the privilege of the writ was of such great significance that its suspension should be strictly limited to circumstances where the peace and security of the Nation were jeopardized. Only after considering alternative proposals authorizing suspension “on the most urgent occasions” or forbidding suspension outright did the Framers agree to a narrow exception upon a finding of rebellion or invasion. See 2 The Records of the Federal Convention of 1787, supra, at 438. Indeed, it would be curious if the Framers were implicitly sanctioning Executive-ordered detention abroad without judicial review by limiting suspension — and by the court’s reasoning therefore limiting habeas corpus — to domestic events. To the contrary, as Alexander Hamilton foresaw in The Federalist No. 84, invoking William Blackstone,

To bereave a man of life (says he), or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.

The Federalist No. 84, at 468 (E.H. Scott ed. 1898) (quoting William Blackstone, 1 Commentaries *131-32); see also Ex parte Milligan, 71 U.S. (4 Wall.) 2, 125 (1866).