Kent on Boumediene/Odah Guantanamo Litigation

by Andrew Kent

[Andrew Kent is a Climenko Fellow at Harvard Law School and beginning next year will be a professor of law at Fordham Law School]

Let me start by thanking Opinio Juris for giving me a chance to offer some preliminary thoughts about the D.C. Circuit’s recent decision in Boumediene / Odah Guantanamo detainee litigation.

1. The threshold statutory issue decided by the D.C. Circuit does not seem difficult. I don’t see a plausible argument that the Military Commissions Act (MCA) did not withdraw the court’s jurisdiction over these cases. In an amusing little spat that illuminates this point, the majority and the dissent in Boumediene / Odah insisted on emphasizing different phrases in the MCA to find that jurisdiction had clearly been withdrawn (Compare Majority at 10-11 & nn. 3 & 4 and Dissent at 9-10). I find it hard to believe that even the Supreme Court – which displayed its ability to creatively interpret statutes in Rasul v. Bush and, arguably, Hamdan v. Rumsfeld as well– will agree with the detainees’ reading of the MCA.

2. The hard and interesting questions concern, of course, the implications of Congress’s withdrawal of jurisdiction. The majority and dissent each proceeded on the assumption that the MCA was not a formal congressional suspension of the writ based on the existence of the predicates mentioned in second clause of the Constitution’s Suspension Clause (“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.”). Rather, the majority and dissent both asked whether, as an ordinary statute affecting the availability of the writ, the MCA unconstitutionally suspended the privilege of the writ. This inquiry obviously requires a baseline. But as the government correctly noted in one of its D.C. Circuit briefs, “The Supreme Court has never decided whether the meaning of the Suspension Clause was fixed in 1789, or whether the Clause might evolve consistent with the expansion of statutory habeas over the course of American history.” The detainees picked the 1789 baseline (which the Supreme Court indicated in INS v. St. Cyr is the floor, but maybe not the ceiling). The detainees argued that Rasul had confirmed that these detainees “were entitled to the writ under the common law, and would have been entitled to the writ as of 1789 when the Constitution was adopted;” and that the MCA is unconstitutional because their baseline “right to the writ as of 1789 is protected by the Suspension Clause.” Addressing and rejecting the detainees’ argument, the majority opinion reviewed old, mainly English, precedents and treatises and held that “given the history of the writ in England prior to the founding [of the United States in 1789], habeas corpus would not have been available in 1789 to aliens without presence or property within the United States” (Op. at 17). The dissent responded that the “well-considered and binding dictum in Rasul” (Dissent at 1) to the contrary should bind the D.C. Circuit and, in any event, while “[t]here may well be no case at common law” in England before 1789 that is factually four-square with the Guantanamo detainees’ situations, “[t]he question is whether by the process of inference from similar, if not identical, situations the reach of the writ at common law would have extended to the detainees’ petitions” (Dissent at 12-13). Parsing a number of eighteenth- century English cases, and “piecing together the considerable circumstantial evidence” (Dissent at 13), the dissent found that the English common law writ would have reached aliens at Guantanamo.

Let me put aside the procedural question of whether the Rasul majority’s dictum about the reach of the common law English writ of habeas corpus circa 1789 is binding on the D.C. Circuit. Focusing just on the substantive issue, I think it is absurd that a vastly consequential U.S. constitutional decision would be made by a handful of judges (a majority of two on an appellate court or five on the Supreme Court) on the basis of thin “circumstantial” evidence from a few old English sources. I will first discuss the historical evidence and then suggest why I think there is a better way to decide this constitutional issue.

As I argued in a recent article (cited for a different point by the Boumediene / Odah majority opinion in footnote 11), the better reading of the available historical materials suggests that the common law English writ would not have been available to aliens, especially enemy combatants or prisoners of war, in foreign territory outside the dominions of the British Crown. But that conclusion is not free from doubt, given the paucity and opacity of the English sources. I am not aware of any cases, and the parties and judges did not cite any, that actually addressed whether an alien then detained outside the realm or dominions of the British Crown was entitled to petition for a writ of habeas corpus. It is as clear as these things get that noncombatant, non-enemy aliens within the realm and dominions of the Crown were thought to be under the “protection” of the “laws” and that most likely included habeas. There were a few famous eighteenth and early nineteenth-century instances where such aliens within Britain successfully invoked the writ. The scanty available evidence suggests, however, that an American prisoner held in Britain in the late eighteenth century during the Revolutionary War would likely have been denied the benefit of the writ.

But the English (and American) cases discussing these issues are few, and the case reports brief and sketchy, making it difficult to say with certainty exactly what English law was. And more generally, it is a mistake to think that British “constitutional” law – made up of an uncertain amalgam of statutes, customs, practices, judicial decisions, and theories drawn from famous historical episodes – had wholly fixed and knowable content. For example, the American Revolution occurred as a result of, among other things, bitter and unresolved disputes between colony and metropole about first principles of English constitutional law, such as the extent to which unwritten customary privileges and rights of Englishmen were available to colonials and, if so, trumped Parliament’s legislation. A seemingly basic issue like whether Parliament could legislate at all regarding the internal affairs of the colonies was disputed. To this day, legal historians argue about whether Britain or America had the better of these legal arguments. More to the point, the availability, scope and procedural protections of habeas even for Englishmen in England see-sawed throughout the seventeenth and eighteenth centuries, as a result of shifting power, interests, and alignments between Parliament, the Crown (or the dictator during Cromwell’s time) and the Crown’s various civil, criminal, military, administrative and ecclesiastical courts. (Historian Leonard Levy’s book Origins of the Bill of Rights has a succinct discussion of this.) In treason cases and others that the Crown alleged involved the safety of the state, judges sometimes accepted the Crown’s say-so and denied the prisoner any habeas review; other times judges required factual detail about the reason for detention from the executive (see Levy). How these vicissitudes would have affected the availability of habeas for unlawful combatant aliens in the realm or dominions, much less abroad, is probably impossible to say with certainty. Certainly the few English cases do not definitively resolve the issues and tell us the exact content of the common law writ in 1789.

And the translation of all of this to the American context is quite difficult. For example, prior to American independence, the most famous liberty-expanding improvements to the English writ were statutory; there were disputes between colonial Americans and British officials about whether Americans benefited from those statutes, or only from the common law writ. The detainees in Boumediene / Odah seek to avoid this issue by arguing only that the “common law” writ – not the English statutory writ – would have protected them in 1789. But it seems quite difficult to determine how English judges would have decided the few cases relied upon by the detainees which are perhaps very roughly analogous to the facts of Boumediene / Odah – much less a directly on-point hypothetical case – if there had not been the famous statutory proclamations about the importance and availability of the writ, even if the precise procedural improvements introduced by statute were not technically at issue in these cases. Moreover, it is an exceedingly hard question whether the precise type of sovereignty that the United States exercises over Guantanamo Bay makes that territory sufficiently analogous to the overseas dominions of the British Crown in which the common law writ was apparently available in 1789. Given the stakes of the U.S. constitutional question we are addressing, I don’t believe that this and related questions can be answered satisfactorily with a few eighteenth-century English case reports and, more importantly, I don’t believe that they should be answered in that manner.

There is perhaps a better way to think about the issue – better methodologically because it gives primacy to the written text of the Constitution, and better substantively because it allows Congress instead of courts to make the relevant policy choices. In my recent article, I examined the text, structure and original eighteenth century meaning of the Suspension Clause and the larger Constitution of which it is an integral part. I argued that the Constitution created a system in which robust individual constitutional rights – including habeas rights – were available for people, whether citizens or aliens, within the United States, but that U.S relations with aliens abroad were governed only by the much more flexible and inconsiderable protections of international law, diplomacy and policy choices by the political branches of the U.S. government. I further argued that the Constitution diffuses, checks and balances government power domestically, in order to preserve domestic liberty and the rule of law, but concentrates and frees external powers to allow the political branches of the U.S. government to act forcefully and coercively against the outside world to protect the freedom and liberty of people in the United States. Turning to the Suspension Clause, recall that it provides 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.” I argued that:

The [Suspension] Clause allows suspension only in cases of “Rebellion or Invasion.” Both terms refer to conflicts internal to the country. If the only two permissible triggers for suspension are internal events, it follows that the writ cannot be suspended based on purely external threats. . . . If courts extend constitutional rights to aliens abroad that are enforceable through habeas, and if the availability of some habeas review is found to be constitutionally required (that is, protected from “suspension”), there could occur situations where the lack of a domestic invasion or rebellion prevent suspension, even if the political branches correctly determined that “the public Safety . . . require[d] it.” In this situation, the Judiciary would be encroaching on the primary province of the Executive and Congress: the political branches are textually and structurally given the responsibility for national protection, especially beyond the borders of the United States. This structural reasoning provides a way to think about the availability of the writ outside the fifty states of the United States. Assuming that the writ should not be available anywhere that the political branches could not, if the public safety required, temporarily suspend it, the writ should only be available in territory over which the United States exercises such pervasive and persistent sovereignty that a hostile military incursion could be fairly described as an “invasion” vis-à-vis the United States, or an armed insurrection could fairly be described as a “rebellion” vis-à-vis the United States.


I don’t want to pretend that this is a perfect answer to the difficult questions raised by Guantanamo. In fact, it is not clear to me what result would flow from applying the “test” I suggest to Guantanamo. I think there’s a reasonable but not overwhelming case to be made that, under this test, Guantanamo would be U.S. territory and the writ would be available. My larger point is that it’s important to shift the focus away from a few old English case reports and towards the core textual and structural features of the U.S. Constitution, a document designed both to protect liberty and to protect national security of the United States.

3. I want to conclude with a few thoughts about the future. First, I am interested in the potential for interplay between detainees’ Suspension Clause arguments and the Supreme Court’s recent statutory interpretation practices. Some commentators have praised the Court’s creative statutory interpretation in Rasul and Hamdan as the exercise of passive virtues that avoided the need to decide difficult and controversial constitutional issues. Similarly, the Court has declined to date to decide the difficult constitutional question whether the Suspension Clause protects 1789 habeas or evolving and expanding habeas. If the Court in the future decides that the Suspension Clause evolves, any previous decision whether to expand the scope of habeas has suddenly become a fateful question of potential constitutional magnitude. If habeas evolves and is protected from suspension as of x date, every time before and until x date that Congress is deemed to have added protective procedures or expanded the availability of the writ to new classes of persons, it has effectively amended the Constitution and prevented future Congresses from changing their mind. In these circumstances, judicial statutory interpretation can have the effect of making constitutional law. A court’s previous creative interpretation and expansion of habeas statutes would all of the sudden look pretty activist and, to my mind at least, unwise.

Until and unless the Supreme Court clarifies that the Suspension Clause protects 1789 habeas, not evolving habeas, I think the Supreme Court is duty bound to be less willful in its interpretation of congressional statutes that concern habeas. Until the fixed-evolving issue is clarified, it might arguably be appropriate for courts to require a very clear statement from Congress before habeas statutes are interpreted to expand the writ. Similarly, it might arguably be appropriate for courts to stop requiring a clear statement before statutes are interpreted to contract the availability of habeas. The Constitution gives Congress authority to control the jurisdiction of the lower federal courts (and, in some instances, the Supreme Court). Congress has authority to decide whether to suspend habeas corpus entirely. These “greater” powers suggest that Congress too has the “lesser” powers; as long as it stays above the 1789 baseline, Congress should be allowed to make the policy decisions of potential constitutional magnitude about the expansion or contraction of the writ.

Second, I think it’s likely that interesting alien vs. citizen equality claims will be litigated and perhaps decided soon. Hamdan’s brief to the Supreme Court, for example, argued that reading the Detainee Treatment Act of 2005 to strip federal courts of habeas jurisdiction over his case would violate Equal Protection guarantees found in the Fifth Amendment to the U.S. Constitution. He argued that the distinctions that determined whether habeas was available or not (alien vs. citizen, Guantanamo versus in the United States) could not constitutionally be drawn by Congress. The Court did not reach that issue, but that is certainly not the last time the argument will be made. As I noted in my recent article, the Supreme Court has never held that aliens outside the United States or its territories have individual constitutional rights. And a number of important statutes relating to national security presuppose that they do not. Holding that aliens outside the U.S. and its territories do in fact have individual constitutional rights would be vastly consequential, impacting and – I believe, hampering – law enforcement, intelligence, military and diplomatic functions of the U.S. government in myriad, significant ways. The precise question regarding the constitutional status of the specific piece of property at the Guantanamo Bay naval base is a close and difficult one. Guantanamo is, in many respects, U.S. territory. But detainees in this and future conflicts can and will make similar arguments about other U.S. bases and outposts in other countries which are leased long-term from host nations or held de facto for the long-term by the U.S. military.

I think it would be dangerous and unwise for the Supreme Court to decide that potentially all aliens in the world outside the U.S. and its territories have individual constitutional rights. Clear and sensible lines need to be drawn to determine what is or is not a territory of the United States in which aliens have constitutional protections. I am working on an article that argues that these lines should be drawn by the political branches of the U.S. government through treaty or statute, or by constitutional amendment, but certainly not by the courts. So I’ll have more to say about this issue later. If the Supreme Court does, in the near future, hold that aliens outside the U.S. and its territories have individual constitutional rights, it will likely be in the form of the mushy ad hoc judicial balancing that Justice Kennedy has signaled he favors (see his concurrences in Rasul and United States v. Verdugo-Urquidez). Martin Lederman blogging at Balkinization appears to agree that the Kennedy approach is the one the Court will take. The amount of uncertainty (and litigation) that such an approach would create for the U.S. military, intelligence community, law enforcement, etc. would, to my mind, be intolerable.

http://opiniojuris.org/2007/02/26/kent-on-boumedieneodah-guantanamo-litigation/

8 Responses

  1. Andrew: I tend to agree that the pre-1789 history is less than pellucid for purposes of deciding how the habeas question should be answered — except to the extent it reveals, one way or another, whether alleged enemy aliens were entitled to challenge the legality of their detention and other treatment. To the extent such aliens were so entitled, at least in certain situations (as the Rogers dissent and the Gerry Neuman brief suggest), it would certainly be odd to read our Constitution to provide even less protection.

    But in any event, I am certainly sympathetic to the notion that structural and normative considerations should play a more prominent role in deciding the extent to which aliens should be protected by the Constitution. And in this respect, I have a question for you. (It’s probably answered in your article, but it’s been a while since I read it.):

    I think your view is that alien residents and “sojourners” are entitled to constitutional protections. (Even if they are alleged to be “enemy aliens”? Alleged enemy “combatants”?) What about aliens who are detained overseas but then transported here to the U.S.? The courts, including the Randolph opinion (if I read it correctly), appear to assume that if the U.S. brings the alien here to the U.S., the Constitution kicks in.

    Assuming that is correct (or will, in any event, be the Court’s holding), then does it make any constitutional sense to permit the Executive branch to avoid constitutional constraints merely by the fortuity of the fact that it has complete control and jurisdiction over a facility that lies a few miles off the Florida coast?

    I could understand a theory (and it might be yours) that alleged enemy aliens have no constitutional rights no matter where they are detained. (I wouldn’t agree with it, but I’d understand it.) But with respect to the GTMO detainees, it seems absurd that so much of constitutional moment should turn on the President’s choice whether to divert the plane to the left rather than to the right just as it approaches Florida.

    Do you agree that if the Boumediene aliens would have constitutional protections in South Carolina, they should have the same rights at GTMO?

  2. Good post. But a nagging question: Why do you assume that “Rebellion or Invasion” refers only to internal threats? Maybe it’s true that the Framers were thinking primarily of internal events when they drafted the Suspension Clause (but perhaps not; I’m not aware of any historical evidence that sheds light on the issue), but, even if that were so, I have a hard time seeing how the text of the Clause standing alone limits the availability of habeas to detention within the actual “home territory” of the United States. For example, if there had been an armed uprising of Nazi sympathizers in Germany in December 1945, while Berlin was under Allied occupation, why wouldn’t it be natural to consider that a “rebellion”? Similarly, if Castro sent a division of Cuban troops across the fenceline to take back GTMO and free the detainees, wouldn’t it be plausible to consider that an “invasion”?

  3. Andrew, under your theory of the Suspension Clause, how is it that citizens located outside the US end up with habeas and other constitutional rights? As for the citizen/alien divide, couldn’t the Court uphold some distinction at the same time as it puts down a constitutional floor on the treatment of aliens?

  4. Marty:

    Your “right turn/left turn argument” has an intuitive appeal, but I wonder whether it really holds up. I assume you would concede that if everyone picked up on the Afghan battlefield had been detained at Bagram Air Force Base, the argument that such detainees have a constitutional entitlement to habeas would be quite weak. (Indeed, Eisentrager seems an insurmountable obstacle to such an argument. Moreover, if you don’t make that concession, the “where does the plane land” argument seems something of a makeweight.) But, if that’s so, why should so much of constitutional moment turn on the President’s choice whether to detain individuals at one overseas military base as opposed to another? Assume that the detainees were flown from Afghanistan not to GTMO, but instead to Camp Doha in Kuwait. What result, then? (Recall that the prisoners in Eisentrager were captured in China, and then flown to Germany; but the plane might well have kept flying all the way to Washington D.C.) Thus, while there may be good reasons to treat Guantanamo differently from other facilities (the nature of the lease, for example), surely the constitutional difference can’t be that Cuba is so close to Florida. That seems entirely arbitrary: after all, if Cuba’s close enough, how about Jamaica? Bermuda? The Canary Island?

  5. I have to agree with Kent about the methodological problems of the Court of Appeals, in Boumediene, so decisively relying on old English jurisprudence in interpreting the scope of habeas (or possibly anything else in the Constitution). As a comparative public lawyer, I usually find myself cringing at the shoddy legal and historical analysis that American judges so often give to English cases. Boumediene was no exception. Just a glance at, say, Sharpe’s study of habeas (one of the seminal texts on the writ throughout the Commonwealth, and which the CA doesn’t seem ever to have referenced) quickly reveals the shaky foundations of the Court of Appeals’ decision about the limited territorial scope of the writ. And, if we are indeed looking for some certainy of meaning of the writ as it existed in 1789, surely more attention must be given to how later English and Commonwealth courts themselves understood the writ as it operated at that time. Although of course, the writ in the US has never operated as an extraordinary remedy in quite the same way as it does, or ever did, in England. The constitutional contexts on both sides of the Atlantic can be significantly different, of course; the CA demonstrated a noticeable lack of understanding of English and older Imperial constitutional law, and how it shapes any understanding of the writ. This is all suggested even by the work of Duker, which the CA repeatedly references sloppily, selectively, and out of context. The way in which federal judges (or clerks?) treat foreign material is too often frustrating, obfuscating, or leading to conclusions that are just plain wrong. And from some briefs I have read on other cases, counsel usually isn’t much better at understanding the English materials either.

  6. Andrew Kent’s analysis raises two red herrings that need to be steadfastly resisted.

    One, noted by Peter Spiro, is the claim that eighteenth century history tells us something about the territorial scope of the Constitution with regard to aliens. The fundamental defect with this argument is that it ignores the fact that prior to the twentienth century the Constitution was regarded as territorially limited even with regard to citizens. Of course, citizens can also raise national security and law enforcement concerns abroad. If early practice is no longer controlling with regard to citizens, then it does not tell us what to do about aliens.

    The second is the fallacy that the choice is between a Suspension Clause that protects the writ “as it existed” in 1789, and an evolving Suspension Clause that protects the writ “as it existed” as of some later date. This is an absurdly limited statement of the possibilities. No other constitutional provision is interpreted that way. The Suspension Clause should be interpreted using history as a source of insight into its purpose, and evolving understandings of the relationship between the writ and the rest of an evolving constitutional system to determine which later developments are of constitutional dimension. The false dichotomy presented by Justice Scalia in his dissent in St. Cyr is merely an effort at distraction.

    — Gerald Neuman

  7. I am currently swamped with meeting with my students to discuss lengthy writing assignments, and so hadn’t planned to find the time to re-enter the fray. But I’ll make an exception in order to respond to Professor Neuman’s vehement and mistaken post about my work. Professor Neuman asserts here, as he has elsewhere, that “prior to the twentieth century the Constitution was regarded as territorially limited even with regard to citizens.” As I demonstrated in my Georgetown article (95 Geo. L.J. at 494-97), there was a number of instances in the nineteenth century in which judges and members of the executive branch and Congress suggested that U.S. citizens had constitutional rights when they were abroad. Most notably, in Mitchell v. Harmony, 54 U.S. 115 (1851), an American citizen successfully prosecuted a trespass / constitutional takings claim against a U.S. army officer relating to conduct that occurred in Mexico. The Supreme Court subsequently described Mitchell as an instance where “This Court and other federal courts have held or asserted that various constitutional limitations apply to the Government when it acts outside the continental United States.” Reid. v. Covert, 354 U.S. 1, 8 &n.10 (1957). Reid’s discussion and holding concerned the constitutional rights abroad of U.S. citizens. There is at least one piece of contrary evidence from the late nineteenth century. In Ross v. McIntyre, 140 U.S. 453 (1891), the Court suggested that it would treat a foreign seaman on a U.S. vessel as a U.S. citizen for purposes of determining whether individual constitutional rights applied to his trial in a U.S. consular court in Japan. The Court stated that the “[C]onstitution can have no operation in another country” and held that the Bill of Rights did not apply to his case. But before Ross, the (admittedly somewhat scanty) nineteenth century evidence suggested that Americans abroad did benefit from individual constitutional rights.

    In contrast, as I also showed in my article, there were instances in the late eighteenth and nineteenth centuries when U.S. courts and goverment officials suggested that aliens outside the United States did NOT have individual rights under the U.S. Constitution.

    We all can and should debate how much relevance history should have in modern constitutional debates. I understand the view — even if I don’t fully subscribe to it — that original founding-era understandings about the Constitution’s meaning or the understandings of earlier constitutional interpreters in the courts and political branches should give way to modern exigencies, circumstances, values, etc. But I don’t understand why historical evidence should be so “steadfastly resisted” as an alleged “red herring,” rather than accepted for what it is and debated for what it’s worth.

  8. By all means, the history should be decided by the history.

    The slight evidence offered in the Georgetown article is far outweighed, to the best of my knowledge, by the contrary evidence, including the lengthy debate over whether US citizens had constitutional rights even in the territories. In re Ross was not a sudden aberration in 1891.

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