Geographical Extent of the
Writ of Habeas Corpus
Kennedy’s Confused Analysis in Boumediene
Writ of Habeas Corpus
Kennedy’s Confused Analysis in Boumediene
Summary
Kennedy's analysis is based on serious misconceptions. He incorrectly assumes that there was only one Writ. He appears to believe that the English and Scottish courts were under the same Crown, thereby requiring a strained and unconvincing explanation of why the Writ did not lie in Scotland. In this article, we disabuse him of his errors, and untangle the skein of kingdoms proper, realms, and dominions under the English Crown, to see where the Writ lay at common law. With that background, we consider Kennedy’s analysis of British precedent.
As Kennedy proceeds through his opinion, he continues to err: having already wrongfully dismissed “formal” sovereignty as a prerequisite for issuing the Writ, he defers to the Bush administration’s position that we are not sovereign over Guantanamo. Then, realizing that the Writ has to issue under some sort of sovereignty, he concludes that we ought to inquire into the objective degree of control the Nation asserts over foreign territory.” Establishing only that the political branches can issue bad-faith disclaimers of sovereignty, he next purports to show that the American Writ could be issued beyond the bounds of formal sovereignty.
Kennedy's analysis is based on serious misconceptions. He incorrectly assumes that there was only one Writ. He appears to believe that the English and Scottish courts were under the same Crown, thereby requiring a strained and unconvincing explanation of why the Writ did not lie in Scotland. In this article, we disabuse him of his errors, and untangle the skein of kingdoms proper, realms, and dominions under the English Crown, to see where the Writ lay at common law. With that background, we consider Kennedy’s analysis of British precedent.
As Kennedy proceeds through his opinion, he continues to err: having already wrongfully dismissed “formal” sovereignty as a prerequisite for issuing the Writ, he defers to the Bush administration’s position that we are not sovereign over Guantanamo. Then, realizing that the Writ has to issue under some sort of sovereignty, he concludes that we ought to inquire into the objective degree of control the Nation asserts over foreign territory.” Establishing only that the political branches can issue bad-faith disclaimers of sovereignty, he next purports to show that the American Writ could be issued beyond the bounds of formal sovereignty.
Kennedy surmises that “practical sovereignty” will carry the Writ where formal sovereignty does not. Whether the “practical sovereignty” is up to the task may depend on the “objective degree of control” over the target territory, although that concept is left undeveloped, being only, perhaps, suggested as the opinion rambles on. Instead, he introduces the “practical considerations” doctrine, apparently to show that in some cases, the Writ may not lie because of “practical considerations”, which don’t apply at Guantanamo. At length he finds a precedent extending the right to trial by jury in capital cases past the bounds of our formal sovereignty, but only with respect to American citizens. His reliance on Eisentrager to support his “practical considerations” theory backfires, and he is left holding a precedent which explicitly denied the Writ to aliens abroad.
We inquire into the application of our Constitution in territories over which we are clearly sovereign, but which are not states. We find, first, that our case law presents no grounds for the proposition that there are no Constitutional rights to grand jury indictments and unanimous petit jury verdicts in U. S. territories. Considering the right to trial by jury at all, we find that the Supreme Court has denied the right to trial by jury in some cases in the Philippines, in a poorly reasoned opinion (Dorr v. U.S., 195 U.S. 138 (1904)) which in any case has no applicability to Guantanamo.
Turning to “sovereignty”, we demolish the canard that Cuba's “ultimate sovereignty” over Guantanamo has any bearing on the question before us. We are then in a position to ask whether English precedent would extended the Writ there.
We inquire into the application of our Constitution in territories over which we are clearly sovereign, but which are not states. We find, first, that our case law presents no grounds for the proposition that there are no Constitutional rights to grand jury indictments and unanimous petit jury verdicts in U. S. territories. Considering the right to trial by jury at all, we find that the Supreme Court has denied the right to trial by jury in some cases in the Philippines, in a poorly reasoned opinion (Dorr v. U.S., 195 U.S. 138 (1904)) which in any case has no applicability to Guantanamo.
Turning to “sovereignty”, we demolish the canard that Cuba's “ultimate sovereignty” over Guantanamo has any bearing on the question before us. We are then in a position to ask whether English precedent would extended the Writ there.
The English common-law Writ lay throughout the Realm of England, and generally in Dominions of the English Crown, except where a governor-general represented the Crown. Guantanamo is under our sovereign rule. It does not have a governor-general; indeed, there is no civilian government at all. It is clearly under American common law, since it is under U.S. law, and no statute has ever substituted another common law. Thus Guantanamo is analogous to a Dominion of the English Crown under the English common-law without a governor-general, and without question the Writ, as the Founders would have understood it, lies there.
Finally, does American case law bar the Writ? The answer is clearly “no”. The only legally supportable limitation we have found on the operation of the Constitution in our sovereign territory outside of the 50 states is the limitation on the right to grand jury indictments and petit jury trials. That was based on the nature of the native population. Since Guantanamo lacks a civilian population, that limitation is inapplicable.
Thus it cannot reasonably be disputed that the Great Writ lies in Guantanamo.
Finally, does American case law bar the Writ? The answer is clearly “no”. The only legally supportable limitation we have found on the operation of the Constitution in our sovereign territory outside of the 50 states is the limitation on the right to grand jury indictments and petit jury trials. That was based on the nature of the native population. Since Guantanamo lacks a civilian population, that limitation is inapplicable.
Thus it cannot reasonably be disputed that the Great Writ lies in Guantanamo.
For the complete analysis in WORD format, send an email to bobmossnj@verizon.net. Comments on clarity will be especially welcome.
