December 5, 2007 7:37AM

Supreme Court and GITMO

Today, the Supreme Court will be hearing oral arguments in the case of Boumediene v. Bush The case represents an important battle over the constitutional doctrine of separation of powers and the “Great Writ” of habeas corpus.

This isn’t the place to lay out all the details, but I will try to boil it down. The case is about two things: (a) the power of government to put people in prison; and (b) a power clash between the three branches of our government. 

President Bush says the entire world, including every inch of U.S. territory, is a battlefield. As Commander‐​in‐​Chief, Mr. Bush and his military and intelligence agents will decide who must be imprisoned (sometimes the prisoners are called “enemy combatants,” “POWs,” “high value detainees,” or “imperative security detainees”) and the courts should not “second guess” the calls made by members of the executive branch. 

There is a Supreme Court precedent called Eisentrager that says the courts do not have jurisdiction over prisoners–so long as they are non‐​citizens who are kept in facilities abroad. Guantanamo was selected as the site, in part, for that legal reason. The Bush administration has tried to keep any legal claims by prisoners out of federal court. When the Supreme Court ruled that a federal statute permitted claims in federal court, Bush went to Congress to change that law. We now have the Military Commissions Act, which tries to withdraw federal habeas corpus jurisdiction from the federal courts–for any case arising out of Guantanamo. The Court will be hearing arguments on the constitutionality of that law today.

In my view, Guantanamo gets so much media attention that most people end up losing the big picture. What if the Supreme Court says habeas petitions from Guantanamo can be heard in federal court? In an ironic twist, such a ruling might prompt Mr. Bush to announce, “I am closing of Guantanamo!” (footnote: The prisoners, however, will be moved to Abu Graib or some other facility). What then?

“Jurisdiction” refers to the power of a court to decide a case. Territory is usually a key factor in deciding jurisdiction. If a prisoner in a California prison sends a habeas petition to a court in Maine, the Maine court will quickly toss it out because it has no jurisdiction. It does not matter if the Maine judge is convinced of the prisoner’s innocence. 

The Bush administration says it should win the Boumediene case because federal courts do not have jurisdiction over non‐​citizen prisoners who are beyond U.S. borders. And they refer us back to the terms of the Military Commission Act and the Eisentrager case.

I believe the Bush administration should lose this case. The Framers of the American Constitution called the writ of habeas corpus the “Great Writ” because it is the fundamental check on the power of government to put people in prison. In law, we say this writ “cuts through all forms,” such as territorial jurisdiction. The courts do have jurisdiction over the “power of control,” which is the President. The writ operates upon the jailer, not the prisoner. Thus, if a habeas petition has merit, the court orders the jailer to release his grasp. 

The Supreme Court needs to protect the role of the judiciary in habeas litigation by invalidating the habeas removal provisions of the Military Commission Act. Once jurisdiction is established, federal courts can move on to the “merits” of the petitions. Whether any particular prisoner can persuade a court that his imprisonment is a mistake remains to be seen. 

The Cato brief in this case can be found here. To watch or listen to me debate George Mason University professor Jeremy Rabkin, go here. I am also participating in an on‐​line debate over at the Federalist Society.