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Executive Detention NYSBA REPORT ON EXECUTIVE DETENTION, HABEAS CORPUS AND THE MILITARY COMMISSIONS ACT OF 2006 NEW YORK STATE BAR ASSOCIATION’S COMMITTEE ON CIVIL RIGHTS MAY 2008 TABLE OF CONTENTS Page INTRODUCTION AND SUMMARY.............................................................................. 1 A. The Guantanamo Detainees....................................................................... 2 B. Report Summary ........................................................................................ 7 I. HISTORY OF HABEAS CORPUS..................................................................... 12 A. The Origins of Habeas Corpus: England ................................................. 12 B. Extra-Territorial Application of Habeas Corpus at Common Law.......... 15 C. Early American Habeas Law ................................................................... 17 D. Early American Extension of Habeas Corpus to Aliens and Alien Enemy Combatants .................................................................................. 20 E. American Suspension of Habeas Corpus................................................. 23 F. World War II and the Extension of Habeas Corpus to Enemy Aliens ....................................................................................................... 28 G. Relevant Post-World War II Habeas Developments ............................... 33 H. Adequate and Effective Habeas Substitute.............................................. 37 II. LAWS OF WAR REGARDING ENEMY COMBATANTS PRE- SEPTEMBER 11TH ............................................................................................ 40 A. The Uniform Code of Military Justice..................................................... 40 B. The Geneva Conventions......................................................................... 42 C. Army Regulation 190-8 ........................................................................... 44 III. EXECUTIVE DETENTION OF ENEMY COMBATANTS AND LEGISLATIVE AND JUDICIAL RESPONSES................................................ 46 A. Hamdi & Rasul ........................................................................................ 46 B. Combatant Status Review Tribunals and The Detainee Treatment Act of 2005 .............................................................................................. 51 C. Hamdan v. Rumsfeld ............................................................................... 58 D. Military Commissions Act of 2006.......................................................... 59 1. Legislative History....................................................................... 59 2. Scope............................................................................................ 62 3. Procedures.................................................................................... 63 4. Habeas Corpus............................................................................. 66 TABLE OF CONTENTS (continued) Page IV. BOUMEDIENE AND POST-MCA DEVELOPMENTS ................................... 68 A. Boumediene v. Bush ................................................................................ 68 B. Hamdan (II), al-Marri and other MCA Case Law ................................... 73 C. Extra-Territorial Executive Detention Outside of Guantanamo .............. 78 D. Legislative Proposals............................................................................... 80 V. CONSTITUTIONAL ANALYSIS OF THE MCA’S HABEAS STRIPPING PROVISIONS................................................................................. 82 A. The MCA Unconstitutionally Suspends Habeas Corpus......................... 83 B. Guantanamo Detainees are Entitled to Habeas Corpus ........................... 85 1. Historical Access of Non-Citizens to Habeas Corpus ................. 86 2. At Common Law, Rights of Aliens to Habeas Corpus Review Extended to Territories Under Dominion of the Crown Similar to Those Held at Guantanamo............................. 87 C. The Current System of Review, Detention and Trial of Enemy Combatants is Not an Adequate and Effective Habeas Substitute .......... 91 1. Notice........................................................................................... 92 2. Reasonable Opportunity to Present Evidence.............................. 94 3. Neutral and Impartial Review...................................................... 95 4. Speedy Release if Detention is Unlawful .................................... 98 5. Right to Counsel ........................................................................ 100 6. Evidence From Torture.............................................................. 101 VI. RECOMMENDATIONS................................................................................... 104 A. Congress Should Repeal the MCA’s Habeas Stripping Provisions....... 104 B. Congress Should Select a System for Detention and Trial of Aliens Detained as Enemy Combatants Consistent with Due Process ............. 105 C. Congress Should Consider Extending Habeas Corpus to All Pre- Conviction Detainees within the Custody of the U.S. Government Held at Locations within the De Facto Control of the U.S.................... 107 VII. CONCLUSION.................................................................................................. 119 -ii- INTRODUCTION AND SUMMARY The freedom from indefinite and unlawful imprisonment lies at the heart of our Anglo- American judicial system, and the “Great Writ” of Habeas Corpus has long been recognized as the vehicle vindicating that right.1 In sharp contrast to that tradition, Section 7 of the Military Commissions Act of 2006 (“MCA”) bars non-citizens classified as “enemy combatants” from filing petitions of habeas corpus in federal courts challenging the lawfulness of their detention by the Executive.2 This bar perpetuates the indefinite – and in potentially many cases unlawful – detention without trial of hundreds of individuals held as enemy combatants since January 2002 at the Guantanamo Naval Base at Guantanamo Bay, Cuba (“Guantanamo”). Absent the writ of habeas corpus to challenge the legality of their detention, these individuals have been held without charge and many face no prospect of trial or release in the foreseeable future. This Report provides an informational resource on the fundamentals of English and American law of habeas corpus and habeas’ traditional role as a bulwark against arbitrary and unlawful detention, the current tension between those basic tenets and the MCA’s suspension of habeas corpus, and the current legal battle before the United States Supreme Court that may resolve this apparent conflict.3 As detailed below, it is the position of the Committee on Civil Rights that the habeas corpus stripping provisions of Section 7 of the Military Commissions Act are unconstitutional. Notwithstanding the Supreme Court’s forthcoming decision in Boumediene, the Committee recommends that the New York State Bar Association (“Association”) adopt a resolution urging Congress to restore the power of the federal courts to hear petitions for writs of habeas corpus filed by “enemy combatants,” including those held at 1 Hamdi v. Rumsfeld, 542 U.S. 507, 554 -55 (2004) (Scalia, J., dissenting). 2 Military Commissions Act (MCA) of 2006 § 7, Pub. L. No. 109-366, 120 Stat. 2600, 2636 (2006). 3 Boumediene v. Bush, 127 S. Ct. 3078 (2007). 1 Guantanamo. Moreover, given that the current system for detaining and trying those enemy combatants does not exhibit even the most basic hallmarks of due process, we recommend that the Association urge Congress to revisit the current system and craft a new regime that adheres to certain bedrock principles of our judicial system, such as the right to counsel and the reasonable opportunity to present evidence challenging the legality of detention.4 Finally, we recommend the Association adopt a resolution urging Congress to hold hearings concerning individuals held as enemy combatants in extra-territorial military detention centers under the control of the United States, in addition to Guantanamo, and examine appropriate avenues for such detainees to challenge their detention. A. The Guantanamo Detainees In response to the September 11th attacks, the United States invaded Afghanistan in retaliation for the Taliban’s harboring of the al-Qaeda terrorist organization, which had directed and implemented the September 11th atrocities.5 In the aftermath of the Afghanistan invasion, the U.S. captured and detained hundreds of individuals beginning in January 2002 at Guantanamo.6 The Executive imprisoned these individuals at Guantanamo on the basis that they were “enemy combatants” in the war against international terrorism and – at least initially – 4 We understand that the Association has recently agreed to join the New York City Bar Association in calling upon Congress to conduct hearings regarding the fairness and independence of the current military commissions system designed to try enemy combatants. We applaud the Association for joining that resolution, but recommend that the resolution expand to request hearings concerning all aspects of detention at Guantanamo, including the initial enemy combatant classification pending trial by military commission. 5 One week after the September 11th attacks, Congress passed the Authorization for Use of Military Force (“AUMF”) granting the President authority to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized,
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