13 Jun Does Ignoring Precedent Matter?
Perhaps the least persuasive part of the largely unpersuasive Boumediene opinion is its attempt to distinguish the most relevant and binding precedent on the subject: the Supreme Court’s 1950 decision in Johnson v. Eisentrager.
In Boumediene, the Court effectively overruled Eisentrager’s holding that enemy aliens cannot have the benefit of habeas corpus when held outside the territory of the United States. (This is not surprising, I suppose. In Hamdan, the Court essentially overruled Eisentrager’s holding that the Geneva Conventions cannot serve as a basis for a remedy in a civilian proceeding.)
Justice Scalia’s dissent, which probably went overboard in some parts, was absolutely right in its evisceration of the Court’s analysis of Eisentrager (see pp. 10-13 of Scalia’s dissent). The Court did not say it was overruling Eisentrager, but it is hard to see how it could have reached its decision today without doing so. Go ahead. Read Johnson v. Eisentrager and try to convince yourself that the denial of the writ to enemy aliens captured and held overseas during wartime was simply based on practical and functional considerations rather than on territoriality and citizenship.
Does it matter if the Court departs substantially from past precedent? Not to the many commentators (on this blog and elsewhere) who have hailed the decision. But even if one is happy with the result, one has to be worried about a judicial methodology that veers rather dramatically from precedent without admitting that it is doing so. Not only does this further undermine the legitimacy of the Court, but it makes it hard for future decisionmakers to know what is or is not legal? The Bush Administration and Congress can rightly complain that the Court has moved, and continues to move, the goalposts here.
It was totally reasonable for lawyers prior to Hamdan to believe that military commissions were statutorily authorized, the Geneva Conventions were not self-executing, and prior to Boumediene that the writ of habeas corpus and U.S. constitutional rights do not extend outside the territory of the United States to enemy aliens. Indeed, it would have been irresponsible for an attorney advising the President NOT to point out that the legal authority existed.
What now? The unacknowledged departure from precedent represented by Hamdan and Boumediene leave us in uncharted territory. A future decisionmaker has got to assume, and attorneys will have to advise him or her, that the writ of habeas corpus almost certainly extends to wherever the U.S. holds de facto control and where practical considerations do not forego extending the writ (the Green Zone in Iraq and Bagram, Afghanistan come to mind). Further, such attorneys should also advise that enemy combatants there enjoy the protection of at least the Fifth Amendment Due Process rights identified in Hamdi and probably others as well. Nor can congressional action limit or constrain the exercise of these rights in any meaningful way. The entire process of detaining enemy combatants is going to be crafted via a series of federal district court and appellate court decisions attempting to apply the murky judicial methodology the Court provided today (and which is probably going to change tomorrow). If I were in OLC, I would certainly recommend that the President and Congress assume they are totally bound by the Constitution overseas, unless or until the Court tells me otherwise.
Maybe this is all for the good, if all that matters is the result. But how we get to a result is a big part of the Court’s legitimacy as a judicial (rather than a policy) decisionmaker. And the Court did itself no favors today on that front.
Is American jurisprudence now so backward looking and moribund that the natural and completely normal capacity of the nation’s highest Court to exercise its role in clarifying and delimiting what is persuasive precedent, in service to a view of the primacy of the constitution’s suspension prohibition (so much for originalism), and in avoidance of complete absurdity, is now to be reviled as a coming of the apocalypse? Au contraire, Julian, Eisentrager can defensibly be confined on the point of territorial jurisdiction, rather than citizenship and sovereignty. In oral argument, Mr Waxman expressly canvassed cases where citizenship and sovereignty have not been not been determinative, including the Indian cases, and England’s suspension of the Writ to alien American sailors on the high seas. It may not be recent, but they are part of our Anglo-common law heritage, and so it is wrong to imply the court has extended a non-sovereign doctrine from the whole clothe. Indeed, any historical survey which claims there is exhaustive authority and uniformity in the writ being limited to citizenship or sovereignty is clearly wrong. It was an unsettled matter, and thus available for judicial clarification as we have now received. Kennedy’s judgement quite clearly goes through… Read more »
What I want to know Julian is this:
On what basis do you claim that citizens of other countries should be any less secure in their persons or property than those of any other, and what basis in law there is for thinking so.
A second question is..
Do you personally think that is how things should be in the world?
That you yourself have no rights in other countries?
You are simply wrong. Wrong on the Constituion, wrong on the law, and wrong in intent — you stand for everything we fought against when we revolted against the Crown.
So I went ahead and read Eisentrager and do not see the problem. In Eisentrager, the court addressed not just the scope of the writ but also the underlying merit question of constitutional rights. Consider the findings from the text: “The Court held that the Constitution did not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States. The Court further found that the petition failed to allege any fact showing lack of jurisdiction in the respondents to accuse, try and condemn petitioners or that respondents acted in excess of their lawful powers.” In this finding, the Court makes a careful distinction between the scope of the Writ from the reach of constitutional rights. The Writ ensures the power and authority of the courts to inquire into the legality of a detention and thereby protect the rights of the individual, but does not confer an individual right in the sense of the amendments: “Thus the writ, while it would become part of the foundation of liberty for the King’s subjects, was in its earliest use a mechanism for… Read more »
I see the force of Howard’s argument, however I want to build on the lack of choice of law analysis of Beth and suggest that in those District Court hearings on their detention that the lower courts may feel the way is open to look under treaty, federal and Constitutional law at the conditions of detention – opening court review of issues such as torture. Munaf suggests that the court is troubled about reaching situations of transfer abroad in extraordinary renditions for practical reasons such as evidentiary issues. However, if the evidence on the US side of the transfer can show intent to and acts to send the person to torture (moving from the formalism of the foreign assurances to the realities that these are places where torture is part and parcel of the interrogation process), the result would be stricter rules on detention, interrogation methods, etc to come into compliance with traditional standards. Hell, the government could stipulate to this point if they dared to admit the obvious about what was being done (both in this and Clinton for that matter). That will certainly tie the hands of those who wish to use torture, but then they are not… Read more »
Professor Davis,
I have a really simple, yet I think potentially informative, quetion for you. Should German soldiers, captured during the Battle of the Bulge, been given habeas rights?
If yes, then I guess you and I are so fundamentally opposed as to how to conduct a war then dialogue is really pointless. If no, then how would you keep Boumediene from applying — i.e., where would you draw the line.
It is not a simple question but since I suspect you want a simple answer I say: maybe. What is that German soldier seeking court review for? That he is not a German soldier? He should not be captured? He was duck hunting? The hypo admits the soldier is that. Why would the Court feel, even if it had the power, it needed to look into that? Let’s look at other hypos. 1) The German soldier is held in accordance with then Geneva law and the laws of war. The battlefield decision is taken to send him/her to a prison camp. He/she is sitting in a prison camp in Germany or France. The local courts are not effective and so it is the kind of place where military commissions (or other type military tribunals) are set up by the allied powers or the occupying power to deal with matters for questions of POW status, POW’s concerns, or civilians that are captured. The German might seek to file a habeas petition, a Court could decide to listen to it and say it does not have the power under a functional analysis. Or a court could consider habeas runs there but that… Read more »
So, I quess you answer is that a German soldier, captured during the Battle of the Bulge, would not get habeas unless he is detained in the US or Gitmo?
My point is this, I think most people would agree that the german soldier captured at the battle of the bulge would not get habeas. Now if you concede that point, which I think you do because frankly you have to, then why does it matter if the US detains him in the United States, Gitmo, or the battlefield? By the way, what’s to keep the US then from just keeping everyone in either Afghanistan or Iraq?
You really need to give me some kind of decent reasons for granting habeas based on where the guy is detained.
If Habeas is a power of the court and not an individual right, then it is up to the court to decide when to accept or dismiss the petition. These decisions council the lower courts to dismiss petitions if the detainee is recently captured, still in the battlefield, or has administrative proceedings pending. That said, the courts have not ruled that a captured enemy soldier who asks for and receives POW status is entitled to Habeas. The reason is that a proper POW camp (like we had in WWII, not Gitmo) is a unit of the enemy army that has been disarmed and surrounded, but which maintains its internal military structure. Formally, it is not much different from an enemy unit on the battlefield that has been surrounded, except that in surrender it has laid down its arms. Certainly the POWs cannot leave the camp, but then if they were surrounded on the battlefield they would not have been able to leave their lines either. A US soldier has to go where he is told and do what he is ordered. Consider a soldier at Fort Dix who has mouthed off and has been restricted to base. He is forced… Read more »
A German soldier captured in 1944 would be a POW under Geneva 1929, and if accused of a crime, he would be subject to the same process as a US soldier. In 1944 that was under the US Articles of War (dating back to 1775 through a series of revisions), which were replaced by the UCMJ in 1951.
The NewStream Dream, I’m not sure what you’re driving at here. Supporters of the decision really aren’t trying to re-conceive the idea of war as a criminal justice enterprise; the applicability of humanitarian law and laws of war for POWs is not in dispute here. Ben has considered complications of the scenario, yes, but in my opinion he went well beyond your hypothetical. To me, this issue is really about a legal floor which has been denied all along by this administration. That means for the vast majority of enemy combatants, the military tribunals system must be established in line with Common Article 3 provisions, for both status determination, and substantive trial. Though status determination could mean POWs status under Article 4A(6) if applicable. Producible evidence ought to be maintained to justify detention at all times.. Additionally, the regime ought to comply with the rights which accrue under accepted obligations under treaty, and international law custom which apply to all natural persons, notwithstanding the lex specialis. That’s the floor. But the administration’s approach has not opted for an proper laws of war approach. They deemed the detainees non-POW, which is fine (if the CSRTs process was worth a damn anyway),… Read more »
I am sorry if my maybe was not clear enough. Again, my answer is maybe. Habeas as a power of the court as Howard says but with a nuance on the POW point.
Best,
Ben
The hypo I would like to imagine is the Iraqi General who was tortured by the CIA/MI in US custody in Abu ghraib in the early days of the war in Iraq. What if he had not died in the shower? Clearly the Iraqi General was a POW and clearly he has something to petition about with regard to his detention in terms of the treatment. Could such a person (through a next friend) seek habeas relief in an American Court and could an American court reach that? Yes. Would a Court grant that relief? I think that the answer could be yes if the mechanisms that normally take care of this do not reach it. Would the American Court reach (1) power to do it (2) grant or deny relief? My answer is maybe after Boumediene. I think that the Court recognizes that the floor (as Will says it) has to have meaning and habeas may be the only way to get that floor operating.
I would be grateful if others would look at that hypo and say what they think the position would be.
Best,
Ben
Kennedy blew it. What a laughably poor decision, predictably celebrated by those for whom only the result matters. It’s great! Result! Nevermind the obviously on-point and almost certainly controlling precedential force of Eisentrager. Nevermind the absurd proposition that federal courts will have to act as factfinders on enemy captures halfway across the globe, remote in time and place, as a consequence. Nevermind that the courts have the least expertise in the area of war and foreign affairs, which makes them the least equipped to formulate policy for the detention of foreign enemy combatants abroad, wherever de facto U.S. control obtains. Yet that is what Justice Kennedy, in his highly contrived opinion distinguishing Eisentrager would have us do (do you see a functional test of de facto sovereignty in Eisentrager? I don’t. It’s a post hoc invention). No wonder there is great suspicion that it is not an entirely honest opinion, that it is judicial arrogation of power without precedent (as Souter admits as much in the concurrence). From the dissents, the Chief Justice, possibly feeling the same, is palpably livid. I’d rather have had Ginsburg write the opinion, overrule Eisentrager outright, than have Kennedy’s ham-handed fingerprints all over this slipshod… Read more »
And the most galling thing about it all is, it was unnecessary. With a Democratic Congress and possibly a next Democratic President, a reversal of policy was already on the cards. The Court should have let the process play out, then take cert if McCain wins. But nooo, prudential considerations didn’t matter. The political branches should be deferred to no longer. Here was Kennedy’s chance to grandstand, and the liberal Justices cleverly seized on that pivot.
“Result!”
Well I guess we can thank the Executive and Congress for trying to be clever by half and bringing us to this point. Hey, the Court did not make up the facts of the case. Bosnian court dismisses terrorism claims against some people but our Executive – knowing better – grabs them from the proverbial steps of the courthouse – way away from any battlefield setting of the kind of war you are describing. You want to yank a court’s chain, that’s about as good as it gets.
Best,
Ben
The AUMF (2001) does not say anything about “battlefield setting” or geographic limitations to its scope. Your argument basically is: judicial overreach is fine because a foreign court system did not have enough evidence or intel to convict, possibly because graymail constricts the admissability of evidence.
Judicial foot-stomping is not a valid argument.
After six years of being jerked around by the Executive and Congressional foot-stomping in the face of the Judiciary, I would suggest that neither branch should be surprised by the judicial foot-stomping – it is after all the Judicial Power.
No my argument is that grabbing people, holding people incommunicado and in black sites, torturing people, trying to create legal black holes and doing all the horrendous crap of which we are finding out each day is not the American way. And creating kangaroo procedures to cover it up like the CSRT’s, is not the American way. And since enough persons in Congress acquiesce (Democrats and Republicans in blind fear of being seen as “soft on terrorism” by standing up for American values) and the Executive has sold its soul and American values down the river, we can thank the Supreme Court (at least 5 of them) six years on saying, we want a shot at looking under the rug at this crap.
The argument of “trust us, there is stuff you can not see” has gotten very very stale.
Best,
Ben
I think I said elsewhere that my eyes glaze over whenever I see a Benjamin Davis comment because it’s 90% political drivel and 10% a substantive legal point, if any at all. Here’s a case in point.
You have no argument. Just lots of cliched posturing.
To me, that’s pretty stale.
Either engage substantively or not at all. I’m not going to wade through that BS.
Notice the gaping silence about my substantive point on the AUMF. Instead, Davis’s reply is a couple of epithets about kangaroo courts, selling souls, etc.
Good grief. Not worth it. I’m out.
Me too.
Best,
Ben
I missed it. Where is the declaration of war? The unexamined assumption is that this is “wartime”. The current situation is only being called a war. It isn’t a war as that term has been defined historically. The confusion is arising from a constitution that envisions a legal order for managing the internal affairs of republic not the foreign affairs of an imperial project.
Uh, no:
I think it’s pretty revealing that you attack Ben for being 90% political and 10% legal when, as far as I can tell, there isn’t a substantive argument to be found in your long comment — just a bunch of ad hoc hyperbole directed at Kennedy. What’s the old saying, something about the pot and the kettle?
Uh, no:
Moreover, at least Ben signs his name to his posts. Hiding behind the cloak of anonymity and engaging in substance-free ad hominem attacks is pretty cowardly.
“The NewStream Dream, I’m not sure what you’re driving at here. Supporters of the decision really aren’t trying to re-conceive the idea of war as a criminal justice enterprise;”
Will, yes they are. Ask Professor Davis and the others on this chain, they want habeas to apply in all circumstances including battlefield captures. Professor David hems and haws, but in the end, he will still afford habeas.
That’s my point, there is no limit to Boumediene.
Kevin Jon Heller, I identify at least 10 substantive legal points made in my posts in addition to some ridicule of Kennedy. So “as far as I can tell,” you’re wrong. 1. Eisentrager is controlling. 2. Separation of powers argument concerning federal courts as factfinders about enemy captures remote in time and place. 3. Lack of guidance to test a claim of “de facto” control; necessitating federal courts to make that determination from an inchoate intuition of Kennedy’s. 4. Gutting of Eisentrager without explicitly overruling it — meaning a novel erosion of precedent. 5. The judicial power determining policy in war and foreign affairs, trumping Congress and the President acting at the height of their powers, per Youngstown. 6. The repudiation of Justice Jackson, twice, in letter and spirit. 7. The “effective fettering of the field commander,” contra Eisentrager. 8. The absurdity that under Boumediene, thousands of German and Japanese enemy combatants would have been able to sue for habeas in federal courts if they (i) deny being enemy combatants (ii) are held in a place of “de facto” U.S. control. 9. The worry that a future large scale war that would replicate the large scale captures of WWII would… Read more »
An additional point, having thought about it further. Boumediene basically opens the door to lawfare like never before. The threshold issue is “de facto” control or sovereignty. Are U.S. prisons in Afghanistan under de facto U.S. sovereignty?
If not, then the first practical effect of Boumediene would be to force DoD to keep its detainees in or near the theater of battle, where sovereignty does not obtain and where the Suspension Clause does not reach. This, at least at first blush, is in tension with the obligation at international law to move enemy captives away from the theater of combat. It also heightens the danger of, e.g., a Taliban attack on such a prison, and attempts at jailbreak.
‘Sending the wrong signal’ doesn’t even begin to describe the Court’s overreach here.
I am honored by so many persons talking about me and my analysis – or lack thereof (whatever). All points of criticism of the majority decision are valid points, but I think people are way to hung up on black and white views. The Executive with Congressional support has engaged in an interogation, detention, and detention review regime that is an improvisation. Persons caught up in that have objected and the Court is saying it has the power to look into those detention regimes to the extent of justiciable issues. If one wanted Eisentrager to stay the law, then the Executive should have acted with people like we did at Eisentrager’s time – no policy of torture, applying Geneva really of the time – and not look at Eisentrager as a free pass for “military necessity.” If Eisentrager is going to be looked at as a license to do anything you want, then a sympathetic case will arise when that “anything” begins to hit the edges of what a civilized state does. It may not be elegant and symmetric or even mechanistic. It may be very confounding to figure out what goes on below in the district courts – but… Read more »
I understand that Professor John Q. Barrett – pre-eminent Jackson scholar – may weigh in later this week on the Jackson point and Boumediene. If I get it I will not fail to post the link somewhere here.
Best,
Ben
On the prisoner abuse at Bagram as it relates to the possible reach of Boumediene see America’s prison for terrorists often held the wrong men which is a series that just started yesterday.
Best,
Ben
“Coming from a social outcast group, that countervailing Court exercise of power insulated from the howl of the crowd in the political arena, is welcome when in the heat of the moment the Executive and Legislative are prone to panic and overreach.”
I cannot believe that people are drawing analogies from the detention of Al-Qaeda to the civil rights movement. Truly mind-boggling.