On Thursday, the US Senate voted to bar
Sen Lindsey Graham (R-SC) introduced the provision, which was added to a defence policy bill. He told the Senate:
For 200 years, ladies and gentlemen, in the law of armed conflict, no nation has given an enemy combatant, a terrorist, an al-Qaeda member the ability to go into every federal court in this United States and sue the people that are fighting the war for us.
And he was right.
In Johnson v Eisentrager (1950), the US Supreme Court decided that US courts had no jurisdiction over German war criminals that had been captured in
However, the 2004 Supreme Court decision in the joined cases, Rasul v Bush and Al Odah v
From the 2004 ruling:
The question now before us is whether the habeas statute confers a right to judicial review of the legality of Executive detention of aliens in a territory over which the
The 2004 Court distinguished Eisentrager:
Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.
The ruling goes on to explain historical applications of habeas corpus:
Application of the habeas statute to persons contained at the base is consistent with the historical reach of the writ of habeas corpus. … As Lord Mansfield wrote in 1759, even if a territory was “no part of the realm,” there was “no doubt” as to the court’s power to issue writs of habeas corpus if the territory was “under the subjection of the Crown.” (R v Cowle)
The Court therefore concluded that the District Court has “jurisdiction to hear petitioners’ habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base.”
I am curious about the conflict between the Supreme Court ruling and the Senate vote.
It would seem to me that what the Senate is doing with Thursday’s provision is invading the province of the Supreme Court in violation of