•  
  •  
 

St. Thomas Law Review

First Page

361

Document Type

Article

Abstract

Although this article focuses on the writ of habeas corpus as filed by prisoners in state custody and as regulated by 28 U.S.C. § 2254, the recent developments involving the writ as filed by prisoners in federal custody and as regulated by 28 U.S.C. § 2241 are worth noting. Section II of Justice Steven's majority opinion in Rasul v. Bush2 deserves reading and re-reading because it recognizes the importance of the writ of habeas corpus in American jurisprudence. Section IV of the opinion holds that even "[a]liens held at the [Guantanamo Bay] base, no less than American citizens, are entitled to invoke the federal courts' authority [to grant writs of habeas corpus] under § 2241" of title 28 of the United States Code. The federal court's authority to grant the writ of habeas corpus to prisoners in federal custody has its foundation in Article 1, Section 9, Clause 2 of the U.S. Constitution which provides that "[t]he privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Accordingly, the Supreme Court has noted that the statutory grant of habeas jurisdiction to federal courts is constitutionally compelled by the Suspension Clause. Section 7 of the Military Commissions Act of 2006 ("MCA"), passed by Congress on September 29, 2006, and signed by the President on October 17, 2006, strips federal courts of habeas jurisdiction over an "alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. Section 3 amends subtitle A of title 10 of the United States Code by defining unlawful enemy combatant as "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents ... " or "a person who, before, on, or after the date of the enactment of [ ] [this Act], has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal . . . ." Consequently, individuals falling under this definition cannot seek relief by filing a writ of habeas corpus whether they are aliens or citizens.' For these people, the writ of habeas corpus has been suspended. Passed in response to the Supreme Court's decision in Hamdan v. Rumsfeld, the MCA-according to Senator Patrick Leahy-is "flagrantly unconstitutional." Limiting the discussion only to the habeas jurisdiction-stripping provision of the MCA, Section 7 can be challenged on the basis that its suspension of the writ is unconstitutional because there is no rebellion or invasion. " The abrogation of the writ of habeas corpus by the MCA is not a new phenomenon brought forth by the terrorist attacks of September 11, 2001, and the "War on Terror." In fact, the unconstitutional abrogation of protections and rights occurs after every domestic act of terror. Just as the MCA cuts back on habeas rights of prisoners in federal custody, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") similarly cuts back on habeas rights of prisoners in state custody. Just as the MCA was passed to cut back rights of the international "terrorists" being held at Guantanamo Bay, AEDPA was passed to deal with homegrown terrorists such as Timothy McVeigh. AEDPA was passed as an effort to streamline federal habeas corpus petitions brought forth by prisoners in state custody. The statute added subsection (d)(1) to 28 U.S.C. § 2254, and changed, inter alia, the federal habeas corpus standard of review from de novo to an unusual one: the state court's decision must now be "contrary to, or . . . an unreasonable application of, clearly established Federal law as determined by the Supreme Court." This article makes the argument that this new standard of review is unconstitutional because it infringes upon a federal court's province to exercise judicial review. Section II of the article provides a brief history of federal habeas corpus, while section III provides a brief background of AEDPA, the legislative history of § 2254(d)(1), and identifies the various ways that the statute implicates the Constitution. This section also discusses the Supreme Court's interpretation of the statute in Williams v. Taylor and Penry v. Johnson. Section IV discusses the four Supreme Court cases of Marbury v. Madison," Martin v. Hunter's Lessee, Cohens v. Virginia, and United States v. Klein which establish the Court's power to exercise judicial review, while Section V argues that § 2254(d)(1) is unconstitutional under these precedents.

Download

Included in

Law Commons

Share

COinS