Deconstructing Hirota: Habeas Corpus, Citizenship, and Article III

Abstract:     
The jurisdiction of the federal courts to consider habeas petitions brought by detainees held as part of the war on terrorism has been a popular topic to courts and commentators alike. Little attention has been paid, however, to whether the Constitution itself interposes any jurisdictional limits over such petitions. In two recent cases, the U.S. government has invoked the Supreme Court's obscure (and obtuse) 1948 decision in Hirota v. MacArthur for the proposition that Article III forecloses jurisdiction over any petition brought by a detainee in foreign or international custody, including that of the Multinational Force - Iraq. Thus, on the government's view, Hirota precludes access to the courts even for U.S. citizens tortured at the behest of the U.S. government overseas.

This Article takes on that argument, along with the citizenship-based distinction that these courts have thus far drawn to distinguish Hirota, and explains why Article III imposes no such bar, even where the detainee is not a U.S. citizen. Instead, Article III only bars such a petition if the detainee is not in the actual or constructive custody of the United States. It concludes that the distinction that courts have drawn in the current cases is not only untenable, but is indicative of the deeper flaw in Hirota - as based on a badly misplaced conception of the relationship between Article III, citizenship, and habeas corpus, obfuscating the more important debate over the scope of the substantive rights enforceable through the Great Writ.

Keywords: Hirota, habeas corpus, federal jurisdiction, extraordinary rendition, Article III, war crimes, IMTFE

JEL Classifications: K33

Accepted Paper Series