II.
This brings us to the constitutional issue: whether the
MCA, in depriving the courts of jurisdiction over the detainees’
habeas petitions, violates the Suspension Clause of the
Constitution, art. I, § 9, cl. 2, which states that “The
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.”
The Supreme Court has stated the Suspension Clause
protects the writ “as it existed in 1789,” when the first Judiciary
Act created the federal courts and granted jurisdiction to issue
writs of habeas corpus. St. Cyr, 533 U.S. at 301; cf. Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 142, 170 (1970). The detainees rely mainly on three cases to claim that in 1789 the privilege of the writ extended to aliens outside the sovereign’s territory. In Lockington’s Case, Bright. (N.P.) 269 (Pa. 1813), a British resident of Philadelphia had been imprisoned after failing to comply with a federal marshal’s order to relocate. The War of 1812 made Lockington an “enemy alien” under the Alien Enemies Act of 1798. Although he lost on the merits of his petition for habeas corpus before the Pennsylvania Supreme Court, two of three Pennsylvania justices held that he was entitled to review of his detention. In The Case of Three Spanish Sailors, 96 Eng. Rep. 775 (C.P. 1779), three Spanish seamen had boarded a merchant vessel bound for England with a promise of wages on arrival. After arriving in England, the English captain refused to pay their wages and turned them over to a warship as prisoners of war. The King’s Bench denied the sailors’ petitions because they were “alien enemies and prisoners of war, and therefore not entitled to any of the privileges of Englishmen; much less to be set at liberty on a habeas corpus.” Id. at 776. The detainees claim that, as in Lockington’s Case, the King’s Bench exercised jurisdiction and reached the merits. The third case – Rex v. Schiever, 97 Eng. Rep. 551 (K.B. 1759) – involved a citizen of Sweden intent on entering the English merchant trade. While at sea on an English merchant’s ship, a French privateer took Schiever along with the rest of the crew as prisoners, transferred the crew to another French ship, and let the English prisoners go free. An English ship thereafter captured the French ship and its crew, and carried them to Liverpool where Schiever was imprisoned. From Liverpool Schiever petitioned for habeas corpus, claiming he was a citizen of Sweden and only by force entered the service of the French. The court denied him relief because it found ample evidence that he was a prisoner of war. Id. at 552.
None of these cases involved an alien outside the territory of the sovereign. Lockington was a resident of Philadelphia. And the three Spanish sailors and Schiever were all held within English sovereign territory. The detainees cite no case and no historical treatise showing that the English common law writ of habeas corpus extended to aliens beyond the Crown’s dominions. Our review shows the contrary. See 53 (1980); 9 116-17, 124 (1982 ed.); 3 131 (1768); see also 1 Op. Att’y Gen. 47 (1794); In re Ning Yi-Ching, 56 T. L. R. 3, 5 (Vacation Ct. 1939) (noting prior judge “had listened in vain for a case in which the writ of habeas corpus had issued in respect of a foreigner detained in a part of the world which was not a part of the King’s dominions or realm”). Robert Chambers, the successor to Blackstone at Oxford, wrote in his lectures that the writ of habeas corpus extended only to the King’s dominions. 2 1767-1773 (composed in association with Samuel Johnson), at 7-8 (Thomas M. Curley ed., 1986). Chambers cited Rex v. Cowle, 97 Eng. Rep. (2 Burr.) 587 (K.B. 1759), in which Lord Mansfield stated that “[t]o foreign dominions … this Court has no power to send any writ of any kind. We cannot send a habeas corpus to Scotland, or to the electorate; but to Ireland, the Isle of Man, the plantations [American colonies] … we may.” Every territory that Mansfield, Blackstone, and Chambers cited as a jurisdiction to which the writ extended (e.g., Ireland, the Isle of Man, the colonies, the Cinque Ports, and Wales) was a sovereign territory of the Crown.