Historically, the habeas corpus writ let common law courts enforce the king's prerogative to inquire into the authority of a jailor to hold a prisoner.6Maj. Op at Pg. *32. Habeas corpus formed the driving force behind the separation of powers by securing personal liberty and governmental accountability.7Maj. Op., at *35. Thus, the separation of powers defends against tyranny.8*35-36. The doctrine protects citizens and those foreign nationals having the privilege of litigating in U.S. courts.9*36. The writ's extraordinary nature demands that a petitioner exhaust all ordinary remedies before seeking it. Courts may modify the procedures to address practical matters and barriers.10*82.
The Constitution states that, "The privilege of habeas corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."11Article 1, Sec. 9, clause. 2. According to Edmund Randolph, that "Suspension Clause" made an exception to Congress' power to regulate the courts.12*37. In WWI, England allegedly abused the suspension of habeas corpus by withholding it from "anyone suspected of communicating with the enemy."13*39-40. The Suspension Clause protected against those "cyclical abuses."14*40.
1. Could foreign nationals apprehended and detained in foreign territory during a serious threat to national security assert habeas corpus?
Not normally. But no precedent showed whether a court would have refused to hear a habeas corpus petition by a prisoner deemed an enemy combatant under a standard like the DTA in a territory like Guantanamo Bay, where the government had total military and civil control.15*42. Cuban courts lacked jurisdiction to hear the claims, and only U.S. law applied at the naval station.16*50-51. English history provided no clear analogy either. That might be expected given the war on terrorism's unique nature.
2. Did the U.S.' lack of formal sovereignty over the detention site leave the detainees without a habeas corpus privilege?
No. The U.S. leased Guantanamo Bay from Cuba in 1903. The lease let Cuba keep ultimate sovereignty over Guantanamo Bay, while the U.S. exercised complete jurisdiction and control.17*52 citing the 1903 lease. But the treaty of 1934 effectively let Cuba exercise sovereign rights only if the 1903 lease was modified or the U.S. abandoned the base.18*53 citing 1934 treaty.