Does Ignoring Precedent Matter?

by Julian Ku

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.

30 Responses

  1. 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 this history.

    Apparently Julian would have preferred the Court to hide behind the nominally Cuba sovereignty of GTMO, instead of looking at the substantive control – which I think is a manifest absurdity. There is no legal debate that if detainees were dropped in a military base on the mainland, even as aliens, they would have access to the Writ. In this case, GTMO is defacto US territory, which has exclusive US law jurisdiction, and which Cuba considers foreign – it is hardly, in any significant sense, a foreign entity. The rhetorical flourishes Julian uses to imply this is some exotic local or a foreign combat zone notwithstanding, GTMO is a US jurisdictional territory if not sovereign territory, and such a distinction I believe was already made in Rasul.

    Even Judge Posner, who is hardly a lily-liberal at the best of times, and who doesn’t have a dog in the fight for evolving norms jurisprudence, has suggested it is absurd to let such a substantive matter turn on craven formalism, and the practicalities of where the plane lands in US control. The GTMO site was chosen precisely to avoid obligations that would otherwise obtain, whilst still being in US jurisdiction and control unencumbered by pesky use-of-forces agreements, and so the Court was right to not allow the Administration to use a sham device of formal Cuban sovereignty to hide its actions from judicial review.

    In my opinion, Julian’s argument is the corporations law equivalent of insisting on separate legal personality for a single director/shareholder company incorporated to avoid obligations. In such cases, the Court rightly look to pierce the veil as a matter of substance, and does not just slavishly follow the consequences of formal incorporation.

    Julian claims this decision will make it hard for future decision makers to know what the law is – but this is rubbish. The entire problem here has been Executive overreach which has coloured every aspect of the administration’s legal thinking after 9/11, and preordained an encounter with reality. I would suggest that there would be no problem at all about certainty if the DOJ and parts of the OLO weren’t being pollicised with candidates who satisfy ideological tests regarding outrageously unconventional views about executive power, and the CiC’s ability to ignore treaty and customary international law. If they had reasonable legal advice from the beginning, even we even had to have CSRTs under a statutory regime, at least they would be in compliance with the CA3 floor provisions and adequate safeguards which could substitute for due process concerns in general, and there would be no issue with habeas writs, because the whole process would be non-arbitrary.

    I can only ask Julian, if the law is really so uncertain how was it that the conventional view of the applicability of everything from the CA3 to the UCMJ, and the rejection of DTA review process of CSRTs, so easily predicted by people like Kerr, Marty and Jack Balkin? Maybe, just maybe, these are difficult issues, but for which we nonetheless have conventional readings of the law which can resolve them. The solution I would suggest, if Republicans want to feel safer about the laws predictability and certainty, is simply for them to engage better counsel, and stop accepting that the extreme tail-end of the movement’s pet idiosyncratic views on executive power are compelling, and likely to survive the rigours of Court.

  2. 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.

  3. 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 securing compliance with the King’s laws.”

    This means that there are two separate geographical questions. The first asks how far the Bill of Rights extends (to Guantanamo, to Iraq, to non resident aliens). In Boumedienne, the court answers a second question, how far does the power of the Court extend to question the lawfulness of a detention by the Executive. The difference is that a detention may be illegal because of a law passed by Congress, even when the detainee is a non-resident alien overseas who, traditionally, has been held to not have the protection of the Bill of Rights.

    The “privilege” of Habeas described in the constitution guarantees access to the courts and substitutes for threshold questions of standing and controversy. If someone is detained by the government in a location where the court has jurisdiction to order the jailer to release the prisoner, then he automatically has standing and there is a self evident controversy that Congress cannot remove (except by Suspension) and which does not depend on the application of Amendments that, after all, were authored after the main text of the Constitution that references the privilege. Rights (speech, religion, trial, etc.) cannot be suspended by Congress, but the privilege of Habeas can, albeit in very narrow circumstances.

    One curiosity of the rulings was that the Court absolutely rejected the application of Hirota to Munaf (which was the government’s primary argument), but then cited Hirota to distinguish Boumedienne from Eisentrager. In both Muanf and Eisentrager, the jail in which the petitioners were held was guarded by the US military, but in both cases the court could not meet the other threshold requirement of having the power to order release because the legal authority over the prisoners rested in a superior jurisdiction. In Eisentrager “the prison was under the jurisdiction of the combined Allied Forces…The United States was therefore answerable to its Allies for all activities occurring there.” In Munaf the prisoners were within the jurisdiction of the Central Criminal Courts of Iraq and could not be released unilaterally by the US.

    There is a set of theories that make these decisions consistent with each other and with the prior decisions. It does not lead to the conclusions you propose. Habeas is a power of the courts to enforce rights and not an individual right itself. Habeas extends as far as the power of the court, which turns out to be farther than the Bill of Rights may extend. Eisentrager was decided based on both the jurisdiction and merits, so it may have simply been a misunderstand that, for 60 years, everyone assumed that the Writ could not consider the detention of non-resident aliens held overseas, when in fact this was a holding that such aliens had asserted no rights for the court to consider and (in a precursor to Munaf) the court had no authority to consider the Writ if it had no authority to release the prisoners.

    This rather explicitly does not come to the conclusion that the Guantanamo prisoners have access to the Fifth Amendment or any other part of the Bill of Rights. This question was explicitly remanded to the lower courts. However, the DC Circuit has already ruled that they have no such constitutional rights, and the Supreme Court did not overturn that finding. So the District Courts may be constrained by Circuit rules to still assume that the detainees have no constitutional rights, and since there is no statutory bar to holding them (and some laws explicitly permitting their detention) this may be a very quick set of Habeas proceedings.

  4. 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 civilized so we should not lose sleep over that. Those who say they should get that far to “protect America” have got themselves into this mess. Way to go boneheads. We have real people threatening us and we have to waste time and energy on this crap because of the barbarians among us.



  5. 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.

  6. 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 no relief is to be granted.

    2) That same German soldier is sitting in Kansas or Gitmo. Maybe more likely there.

    3) The US has that German in Germany and is doing horrendous things to him in the US defacto controlled part of Germany in which the military commission is a kangaroo court. All those things may lead to habeas being seen to lie there.

    4) the facts matter

    Run a war consistent with principles that served us well for 60 years and I suspect you will likely not have the Court sticking its nose in the tent about how the detainees are treated.

    Run a war consistent with barbarity in your treatment of detainees and kangaroo procedures, and I suspect you will have a court thinking about whether it is possible for it to take a look at what you do.

    Bright lines I suspect require good faith compliance with legal rules – center of the rule rather than exotic analyses.

    I would note the transposition of time is difficult because the court-martial mechanism of the US during WWII was subject to significant unlawful command influence that was part of the reason for the reforms of the UCMJ in the 1950’s. Military law specialists can walk you through that. The case of the Admiral’s sone who was hung from the yardarm in the 19th century comes to mind.

    One of the most significant, though rarely discussed, aspects of WWII court-martials was in the court-martial and sentencing to death of black GI’s in the European theater. I would encourage you to read Alice Kaplan’s The Interpreter and learn about Plot E in an American Battlefield Cemetery outside of Paris where black soldiers convicted and executed in dubious court-martial proceedings are buried in numbered graves. (Leon Jaworski was a famous lawyer who cut his teeth on those types of prosecutions.) The plot is not mentioned on the battlefield cemetery website because it is an embarassment to the military. As a former convenor of the Military Commissions under the Presudent’s Military Order One said (sorry his name escapes me now – a good guy though), “There is no excuse for what happened at Plot E.”

    I have not read great criticism of the Control Council Order Military Tribunals in occupied Germany so I suspect the US courts would be loathe to entertain habeas applications even in those cases from the US occupied part of Germany. I welcome comments from those who know the Control Council cases better than me.

    I do have to be concerned about the Court yielding to prejudices of the day in possibly not seeing the ability for the writ to run in some of the cases. Hirota’s thinness suggests to me that is part of what was happening there. Boumedienne suggests the majority resisted yielding to those prejudices as it did in Korematsu and for that I salute them.

    Sorry it is a messy answer but, as you know, the world is messy. If I have not responded clearly enough, let me know.



  7. 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.

  8. 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 to stay in a federal institution surrounded by barbed wire and patrolled by armed guards. It sounds a lot like prison, but it is not. What liberty he lost he gave up when he enlisted. No judge would entertain a petition for Habeas from a soldier who doesn’t like being forced to stay in the base where he was posted. Well during a real war, real POWs are in essentially the same state.

    When a soldier surrenders, the Detaining Power (to use the Geneva language) becomes part of his chain of command. Our officers have the right to give military orders to the POW to tell him where to go. If they order him to a camp in Mississippi and tell him to stay there, he has not been “detained” in the sense of a civilian who is arrested. He is simply a soldier following orders from a new command structure. There is no reason to believe that a judge would grant them Habeas and more than he would give it to the soldier at Fort Dix. It is up to the court to make this judgement.

  9. 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.

  10. 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), but yet could not enjoy the CA3, to say nothing of other avenues to assert meaningless rights of due process. They’ve simply been shunted off to the black hole of GTMO, where the clock has been run down, so they have an equivalent of an institutional attainder. No part of that should be acceptable. Majority’s decision is eminently reasonable and unavoidable when viewed in that context.

  11. 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?

    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.



  12. 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.



  13. 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 and poorly rendered decision. At least then we’d have something more than an inchoate jurisprudence, possibly more guidance for factfinding courts, and less of a pretense that Eisentrager hasn’t been gutted. That he was assigned to write it is almost certainly an unpleasant side effect of judicial politics — the 4 vote blocs from either side jockeying for his deciding vote. Consequently, AMK’s self-importance is probably at its apogee — incredibly exceeding even that of a Congress acting in Youngstownian sync with the President. So that’s Justice Jackson repudiated twice by the Justice Kennedy. The judicial power now intrudes in war and foreign affairs wherever the United States has “de facto” control, and the Court has, contra Eisentrager, “devised an effective fettering of [the] field commander” by calling him to account for policy abroad, thereby diverting him “from the military offensive abroad to the legal defensive at home.”

    Truly well done. The next time the United States fights a large scale war, Boumediene will be an albatross nobody wants.

  14. 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.


  15. 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.



  16. 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.

  17. 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.



  18. 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.

  19. 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.

  20. Me too.



  21. 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.

  22. 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?

  23. 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.

  24. “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.

  25. 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 result in a flood of habeas petitions to the federal courts; swamping the system.

    10. The lack of a “functional test” of sovereignty in Eisentrager — this is a post hoc invention by Kennedy.

    11. That granting cert was unnecessary since a reversal of policy by the political branches is on the cards. Cert could always have been granted later if a Dem Congress and Dem President failed to act; or if a Dem President wasn’t elected. Instead, the DTA process AND the political process was short-circuited, and judicial will imposed willy nilly.

    12. That the AUMF has no geographic limitations in scope nor does it mention “battlefield setting[s]”.

    13. That the argument based on a decision of a Croatian court is unavailing, given the problem of graymail.

    Among a surfeit of substantive legal points, which I’ve now identified for your edification, I took a few shots at Kennedy’s judicial vanity. That hardly amounts to my comments being “only” about Kennedy.

    You are mischaracterizing my comments, and you know it.

    By contrast, Davis is engaged purely in making political talking points. There is not a shred of legal relevance in his remarks. This you know, too.

    So you attack my “cowardly” anonymity, as if it were relevant. (It isn’t.) It is merely a variant of the ad hominem attack you claim to reject. If it mollifies you, my name is John Tan, and I’m a tourist guide.

  26. 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.

  27. 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 that is what happened and what should happen if the Judicial Power is to respect its Constitutional role.

    Korematsu is the memory. Dred Scott is the memory.

    I do not think of Jackson having been overruled. I think it is more that Jackson has been updated to a situation where there is more content to int’l humanitarian law and international criminal law (thanks in a significant part to his work at Nuremberg) and human rights law than at his time.

    Also, if we remember Reid v/ Covert, the Court stepped in because of basic rights it considered were put at risk in the Status of Forces Agreement. Boumediene is a new iteration in an old struggle about what is the content of the American idea.

    Now, I regret if my comments are not considered sufficiently legal for some of you, but I attempt to focus on the meanings of this very important decision.

    It is not a decision about doctrinal cubbyholes, it is about something more fundamental about how the rule of law applies in the United States. I again say that those who complain about Court overreach are looking at the wrong entity. It is Court reaction to the Executive (with Congressional) overreach. In the absence of such Executive and Congressional overreach you would not have this reaction. Constitutional hydraulics.

    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.

    It is the forthrightness of the majority that I found quite refreshing – and I suspect reassuring to jurists around the world who are also aware of the complications of war and fighting terrorism.



  28. 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.



  29. 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.



  30. “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.

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