Do Aliens Outside the United States Have a Constitutional Right to Habeas?
Even if the writ has not been suspended, however, the residual right to habeas corpus does not protect all persons in all places. In particular, the Supreme Court’s 1950 decision in Johnson v. Eisentrager held that an enemy combatant who has never been in the United States, and who is held outside the territory of the United States, has no right to file a habeas corpus petition in a U.S. court. Complicating matters further, in the 2004 case of Rasul v. Bush, the Supreme Court held that the statutory portion of the Eisentrager decision had been superseded. The Justices accordingly found that, as a matter of statutory interpretation, Guantanamo Bay detainees could file habeas corpus petitions. Of course, the MCA amends the very statute in question, making clear that Guantanamo Bay (and other enemy combatant) aliens cannot file habeas petitions. Accordingly, the third question Judge Robertson had to address was whether Hamdan’s case now falls within Eisentrager’s constitutional rule that
