The Suspension Clause as a Structural Right
38 Pages Posted: 10 Oct 2007 Last revised: 26 Dec 2007
The central point of disagreement between the majority and dissenting opinions in the D.C. Circuit in Boumediene v. Bush, the latest in a series of challenges to the detention of non-citizen enemy combatants at Guantánamo Bay, Cuba, is the question whether the Constitution's Suspension Clause applies in Guantánamo. In this symposium essay, I argue that both sides of the current debate are focusing on the wrong question because of a deeply rooted historical misunderstanding of the Suspension Clause. Retracing the original understanding of the Clause, the essay argues that the Suspension Clause was meant as a grant of authority to Congress to suspend the writ of habeas corpus in certain circumstances, rather than as a constraint on Congress's power thereto. As such, the Clause delineates the only circumstances wherein Congress may abridge the otherwise-available common law writ of habeas corpus.
The problem, as the essay retraces, comes from reading together the Supreme Court's decisions in Ex parte Bollman (1807) and Tarble's Case (1872), the former of which precluded common-law habeas corpus in the federal courts, and the latter of which denied state courts the authority to issue habeas petitions against federal custodians. As I argue, although each decision is defensible on its own merits, together, they produce a constitutional conundrum vis-a-vis Congress's power over habeas corpus, and one that should limit Congress's power to completely preclude federal habeas jurisdiction over claims cognizable at common law to those cases authorized by the Constitution, i.e., Cases of Rebellion or Invasion [when] the public Safety may require it.
Keywords: habeas, guantanamo, boumediene, suspension clause
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