Constitutional Law Habeas Corpus Petition

CONSTITUTIONAL LAW AND POLICY

Facts

Ali Hussein Akbar is a Jordanian citizen who was captured abroad and imprisoned as an “enemy combatant” at Balad Air Base in Iraq. Balad Air Base is controlled by U.S. military forces. Mr. Akbar filed a writ of habeas corpus, claiming that although he was given the status of “enemy combatant,” the U.S. had not yet filed formal charges, had not allowed him an opportunity to answer any charges, had not given him assistance of counsel, and had no opportunity to be head before a neutral tribunal. The United States Army, along with the D.O.J., filed a motion to dismiss the habeas corpus petition.

Issue

Whether Mr. Akbar, a non-U.S. citizen “enemy combatant,” is entitled to be heard on a habeas corpus petition?

Rule

Alien enemy combatants have the right to be heard on a habeas corpus petition if (1) their designation as enemy combatant lacked sufficient process; (2) the sites of apprehension/detention are sufficiently within the control of the U.S., and (3) the obstacles and costs of resolving the habeas corpus petition are not unduly burdensome. Boumediene v. Bush, 553 U.S. 723 (2008).

Analogous Case

In Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court held that persons detained in Guantanamo Bay were still protected by, and had access to, some legal rights – with one such right being the right to challenge detention. As per this particular Supreme Court ruling, detainees held in US overseas military installations had the right to habeas corpus. Towards this end, the Military Commission Act (MCA) was found to be in violation of the constitution as it essentially suspended this particular right. In Boumediene v. Bush, Bosnian police arrested Lakhdar Boumediene and five other natives of Algeria following a tipoff by U.S. intelligence personnel. The six were arrested on suspicion of being involved in plans to attack the U.S. embassy located in Bosnia. All six were labeled enemy combatants by the U.S. government and carted off to Guantanamo Bay were they were detained. Alleging certain violations of international law, the common law, certain treaties and statuses, as well as the Due Process Clause of the constitution, Boumediene filed a habeas corpus petition. The government filled a motion in the District Court to have these claims thrown out on the basis that the petitioner did not have a right to a habeas petition because he was essentially in detention as an alien at a military facility based overseas. The dismissal was affirmed by the D.C. Circuit U.S. Court of Appeals. However, the dismissal was later on reversed by the Supreme Court.

Firstly, although the Supreme Court avoided making a judgment as to whether due process standards were satisfied as per the existing composure of the CSRTs, it did indicate that the findings of fact by the tribunal were not immune to error. This is even in those circumstances where all those involved took deliberate measures to promote good faith and diligence. Further, it was found that the habeas writ could not merely be substituted by the procedures indicated or formulated in the MCA. In other words, the said procedures were deemed inadequate substitutes for the writ. The Supreme Court ruled that the right to habeas corpus applied to aliens who were considered to be enemy combatants. Secondly, the Supreme Court made a finding to the effect that Guantanamo Bay – which is where Lakhdar Boumediene was being held, was unilaterally controlled by the United States. This is more so the case given that the U.S. had leased the territory on which Guantanamo Bay stood from Cuba on a long-term basis. For this reason, the U.S. could be deemed as having de jure sovereignty over the installation. Third, although the Supreme Court indicated that the government may be required to incur some expenditure in habeas corpus proceedings, and that that such proceedings could divert military personnel focus and attention on other critical issues, the associated costs were not found to be prohibitive such that they necessitated the automatic dismissal/denial of the habeas proceedings. It was on the strength of this that the US Supreme court ruled that the petitioners had every right to file the writ of habeas corpus and that the MCA was not to be used as a substitute to the writ.

Application

There mere designation of Mr. Akbar as an enemy combatant is not sufficient to bar him from seeking habeas. In essence, in line with the MCA, alien detainees considered to be enemy combatants – like Mr. Akbar – may not have their habeas corpus applications heard by federal courts. This is more so the case given that the MCA effectively eliminated the jurisdiction of the said courts in such scenarios. The MCA happens to be in violation of the constitution to the extent that it suspends the habeas writ. This is more so the case given that the habeas corpus writ cannot be adequately substituted by the Detainee Treatment Act (DTA) procedures. For this reason, the fact that Mr. Akbar has been designated as an enemy combatant does not necessarily bar him from seeking habeas.

Secondly, it would be prudent to note that the Balad Air Base is under the control of U.S. military forces. As a consequence, this installation happens to be within the US federal courts statutory jurisdiction. It therefore follows that Mr. Akbar has the right to be heard on a habeas corpus petition because he is being detained within a facility that is within the control of the U.S.