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Deconstructing Hirota: Habeas Corpus, Citizenship, and Article Iii

60 Pages Posted: 4 Aug 2006  

Stephen I. Vladeck

University of Texas School of Law

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Date Written: August 1, 2006


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."

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 Classification: K33

Suggested Citation

Vladeck, Stephen I., Deconstructing Hirota: Habeas Corpus, Citizenship, and Article Iii (August 1, 2006). Available at SSRN: or

Stephen I. Vladeck (Contact Author)

University of Texas School of Law ( email )

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Austin, TX 78705
United States
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