For almost six years, the habeas corpus petitions brought by foreign detainees held by the United States at Guantanamo Bay, Cuba, have stalled because the courts have struggled to answer a single question: whether the detainees possess enforceable rights. Although that question remains unresolved, the courts have uniformly concluded that the Guantanamo habeas claims, as well as the habeas claims brought by other accused enemy combatants, require a showing that the detainees possess cognizable rights violated by the detentions, most especially constitutional rights. This Article argues that the courts have been asking the wrong question and that habeas relief does not require the possession of rights. For most of the long history of habeas corpus, courts resolved habeas claims by determining whether the jailer had authority to impose detention, without undertaking any inquiry into the petitioner’s rights. Habeas did not address “rights” in the modern sense of a discrete group of personal trumps against governmental action, such as those protected by the Bill of Rights. Habeas did not protect rights in this sense for a simple reason: habeas predates rights. Rather than addressing rights, habeas cases traditionally were framed in terms of power: “The question is,” Justice Marshall asked in Ex parte Burford, “what authority has the jailor to detain him?” In the Guantanamo detainee cases, the traditional habeas inquiry would require the government to establish, as a matter of fact and law, that the detainees are enemy combatants.
2007 Wis. L. Rev. 1165 2007