Separation of Powers

On Thursday, the US Senate voted to bar Guantanamo Bay prisoners from challenging their detentions in American courts. The Senate vote was in spite of a 2004 US Supreme Court ruling which said that the Guantanamo prisoners could file petitions for writs of habeas corpus in the US courts.

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 China and were being held in a US-administered prison in Germany and had at no time been present in “any territory over which the United States is sovereign.”

However, the 2004 Supreme Court decision in the joined cases, Rasul v Bush and Al Odah v United States, considered whether or not US courts have jurisdiction to hear “challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities, and incarcerated at the Guantanamo Bay Naval Base, Cuba.”

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 United States exercises plenary and exclusive jurisdiction, but not “ultimate sovereignty.”

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.

In United States v Klein (1871), a case that further defined the Constitutional separation of powers, the Supreme Court decided that it was not within the powers of Congress to invade “the province of the judicial branch by prescribing the rule of decision in a particular cause.”

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 United States v Klein by attempting to create a statute which directly contradicts a Supreme Court ruling.