In one of my previous diaries on the D.C. Circuit's recent decision in Boumediene v. Bush, I noted an intriguing reference made by the dissent, namely that
English common-law courts also recognized the power to issue habeas corpus in India, even to non-subjects, and did so notwithstanding competition from local courts, well before England recognized its sovereignty in India.
Unfortunately, the dissent does little to add content to this argument, other than string-citing to a series of Indian habeas cases. Having done a bit more digging, I think the Indian cases are the strongest piece of historical evidence supporting the argument of the Guantanamo Bay detainees. It is, however, by no means the only bit of history on the detainees' side. This amicus brief , submitted to the Supreme Court in Rasul, does an excellent job discussing the relevant history (including the Indian cases) and was largely the inspiration for this diary.
Before I begin, it's worth noting (for those who haven't been following the saga of the GTMO detainees' attempt to seek a writ of habeas corpus in U.S. courts, that the central question in the Boumediene case is whether the detainees would have been able to avail themselves of the Great Writ as it existed in 1789. The reason for this is the Supreme Court's oft-repeated holding that the Suspension Clause at least protects habeas rights as they existed at common law in 1789. Therefore, the question of the historical reach of habeas is the one that must logically be answered by any court confronting the detainees' case. If the 1789 writ would have reached GTMO, the court need not confront the thornier question of exactly what the Suspension Clause protects.
An Overview of the British East India Company
Initially founded in 1600 as "The Company of Merchants of London Trading into the East Indies," the British East India Company began as a group of influential businessmen who, via a Crown charter, were given the exclusive right to trade in the East Indies for a period of fifteen years. Soon after arriving in India in 1608, the Company managed to gain favor with the ruler of most of India at the time, Mughal Emperor Jahangir. Seeing an opening, the Company urged the Crown to launch a diplomatic mission with an eye towards striking a treaty granting certain exclusive rights to the British East India Company. The Crown's diplomatic efforts proved successful, and the Emperor gave members of the Company essentially carte blanche to use Indian ports, settle anywhere in the country, and trade without fear of interference from the Mughal empire or other rival European nations.
Having established a clear advantage over its competitors, the Company quickly became a dominant force on the Indian subcontinent. In 1670, King Charles II, in a series of five acts, gave the Company the rights to acquire territory, mint money, command troops, form alliances, and exercise civil and criminal jurisdiction over acquired territory. A series of military victories during the late 17th and early 18th centuries further cemented the Company's control, as it gradually became the dominant, if not sole, military power on the subcontinent.
The Analogy Between the East India Company and GTMO
Despite the Company's military successes, however, the chore of actually governing the vast and expanding Indian territories over which it was the de facto ruler was more than the Company could handle. In response to the growing imperative of a more formalized government and the Company's need for financial assistance, Parliament passed the East India Company Act of 1773 (13 Geo. III, c. 63), which, among other things, established a more formalized governmental structure in India and established a Supreme Court at Calcutta.
It was this very court that, as early as 1775, was issuing writs of habeas corpus to both subjects and non-subjects of the Crown alike (for an example of the latter, see B.N. Pandey, Introduction of English Law Into India 151, noting that a writ of habeas corpus was issued in 1777 to an Indian arrested and confined without trial by a local criminal court outside Calcutta). Indeed, it is cases from this court to which the Boumediene dissent cited. As noted by the amicus brief liked to above (citing to a letter written by the Chief Justice), the Chief Justice of the Calcutta Supreme Court
understood his authority to issue writs of habeas corpus to be derived from the principle, articulated by Blackstone, that this high prerogative writ extended to all parts of the king’s dominions to test the legality of imprisonment.
Issuance of writs of habeas corpus was not a sporadic and isolated event; the Calcutta Supreme Court repeatedly exercised its authority to issue the writ in a wide range of cases, including individuals detained by the Dacca Council, a provisional council composed of British servants of the East India Company, by the local government in the provisional city of Murshidabad, and even by the Nabob of the Carnatic (who was, according to the amicus brief and the authorities cited therein, "an independent native prince.").
Critically for our purposes, these writs were issued notwithstanding the fact that the British Crown delayed formally asserting sovereignty in India until the Charter Act of 1813. In other words, it was not until nearly forty years after the first writ of habeas corpus was issued in India that the British government formally declared its sovereignty there. Prior to that time, the Mughal Emperor repeatedly asserted formal sovereignty, notwithstanding the East India Company's de facto control. As stated in the amicus brief quoting in part the Cambridge History of the British Empire,
during the decades after the first writ was granted in India, "the relations between the [East India] Company’s government in [Bengal] and the Moghul emperor" remained one, respectively, of "the de facto and the de jure wielders of Indian dominion."
The parallels between the British East India Company and the U.S. Naval Base at Guantanamo Bay are too striking to ignore. In the case of GTMO, of course, the U.S. holds a perpetual lease, renewable at the sole discretion of the U.S., and during which time the U.S. exercises "exclusive jurisdiction and control" over Guantanamo Bay, while Cuba retains "ultimate sovereignty" over the land. By the very terms of the lease, then, the U.S. exercises at least as much control over GTMO as the East India Company exercised over India between 1773 and 1813, notwithstanding the lack of "ultimate sovereignty" for both.
Contrary to the reasoning of the D.C. Circuit, sovereignty is not the sine qua non of habeas corpus rights, and it never has been. In 1789, British courts were issuing writs of habeas corpus to non-subjects in India, notwithstanding the lack of formal British sovereignty there. Thus, there is no reason to believe that habeas corpus, as understood in 1789, would not extend to non-citizens held on a military base over which the U.S. exercises "exclusive jurisdiction and control," notwithstanding the lack of formal U.S. sovereignty there.
I think that is what we call a Q.E.D., no?