Many in academia and the legal community have been hard at work attempting to convince the judiciary to extend habeas corpus review to prisoners of war to challenge their designation as enemy combatants. In essence, these advocates are seeking to have civilian courts rather than the military determine the who is and is not an enemy combatant for the first time in the history of the Republic.
This begs the question of how exactly civilian courts would apply habeas review to go about this task.
Habeas corpus does not normally provide substantive review like a combatant status review board. Rather, as Justice Holmes observed: "What we have to deal with is not the petitioner’s innocence or guilt but solely the question whether their constitutional rights have been preserved." Moore v. Dempsey, 261 U.S. 86, 87-88, 43 S.Ct. 265, 67 L.Ed. 543 (1923). Accord Walberg v. Israel, 766 F.2d 1071, 1078 (7th Cir.) (Posner, J.), cert. denied , 474 U.S. 1031, 106 S.Ct. 546, 88 L.Ed.2d 975 (1985). Consequently, Courts engaging in habeas review generally do not weigh the evidence of the case against the petitioner. See, e.g., Ex Parte Lange, 85 U.S. (18 Wall.) 163, 175, 21 L.Ed. 872 (1874); Hyde v. Shine, 199 U.S. 62, 84, 25 S.Ct. 760, 50 L.Ed. 90 (1905); Ex Parte Quirin, 317 U.S. 1, 24 (1942). The question of evidentiary sufficiency is generally not cognizable in habeas corpus because it implicates no constitutional right. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979).
Consequently, even if POWs are among the classes of prisoners which may seek the writ, I am unsure under what authority the Court may use habeas review to conduct a substantive determination of the status of the petitioner as an enemy combatant. Rather, I would think that the Court is restricted to determining whether the military has violated any of a prisoner's procedural rights under the Constitution or federal statutes during the combatant status hearing.
This throws Braer Rabbit into the briar patch of determining whether a foreign POW has any procedural rights under the Constitution or federal statutes in the first instance and then whether military status hearings violate those rights. However, like that fictional rabbit, the courts should have no problem hopping through that thicket.
While there is no precedent for extending habeas corpus review to POWs to challenge military status hearings, there is some useful precedent when the Supreme Court extended habeas review of war crime trials of unlawful enemy combatants by military commission. Under that precedent, it is unlikely that enemy combatants challenging military status hearings will fair any better than the convicted war criminals in their habeas reviews.
In Ex Parte Quirin, 317 U.S. 1 (1942), German unlawful enemy combatants who had been tried and convicted of war crimes by military commission argued that they had the right to a civilian criminal trial. The Quirin Court summarized petitioners' case:
Petitioners' main contention is that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; that in consequence they are entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses. In any case it is urged that the President's Order, in prescribing the procedure of the Commission and the method for review of its findings and sentence, and the proceedings of the Commission under the Order, conflict with Articles of War adopted by Congress-particularly Articles 38, 43, 46, 50 1/2 and 70-and are illegal and void. Id. at 24.
The Court then noted the standards for its review:
We are not here concerned with any question of the guilt or innocence of petitioners. 4 Constitutional safeguards for the protection of all who are charged with offenses are not to be disregarded in order to inflict merited punishment on some who are guilty. Ex parte Milligan, supra, 4 Wall. 119, 132; Tumey v. Ohio, 273 U.S. 510, 535 , 47 S.Ct. 437, 445, 50 A.L.R. 1243; Hill v. Texas, 316 U.S. 400 , 62 S. Ct. 1159, 1161, 1162. But the detention and trial of petitioners-ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger-are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted.
The Quirin Court then held that unlawful enemy combatants fell outside the protections of the 5th and 6th Amendments and Congress' Articles of War did not expressly bar the procedures used by the military commissions formed by the President. Consequently, the Court denied the petitions of the unlawful enemy combatants.
If Quirin is any guide, a court extending habeas review of the military status hearings used to determine if a Guantonomo detainee was an unlawful enemy combatant is still likely to find that the Gitmo detainees do not have a constitutional right to a status hearing by a federal court and the military status hearings do not expressly violate any of Congress' statutes. Indeed, Section 948)(a)(1)(ii) of the Military Commission Act of 2006 expressly recognizes that "Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense" can make the determination of whether a capture is an "unlawful enemy combatant."