Function Over Form

Many thanks to the Opinio Juris team for hosting this conversation, and to colleagues who have already offered such interesting and insightful posts. In this spirit of exchange, I’ve crafted comments that I hope will challenge and extend some of their observations, as we all continue to digest this momentous opinion on- and off-line. The benefit of continued reflection will no doubt reveal shortcomings in my preliminary reactions. My current research takes a comparative look at the application of constitutional protections to non-citizens when a government acts extraterritorially, so stay tuned for more in-depth analysis in my next article!

The Boumediene majority frames its question broadly, but answers it narrowly. It asks “whether foreign nationals, apprehended and detained in distant countries during a time of serious threats to our Nation’s security, may assert the privilege of the writ and seek its protection” (slip op. at 15). But, as Marty Lederman pointed out in an early post, the Court’s decision does not address this broader question, confining its holding to “a territory, like Guantanamo, over which the [U.S.] Government has total military and civil control” (slip op. at 16). The majority speaks the language of “de facto sovereignty,” which Roger Alford in his second post appropriately highlights as a critical concept in the majority opinion. It seems to me that this term is used more as a counterpoint to the Government’s emphasis on de jure sovereignty, and does not do much independent work as a meaningful concept in and of itself. At a minimum, the majority is clear about what it understands this concept to encompass for the purpose of deciding this case: those enclaves in which “no [municipal] law other than the laws of the United States applies” (slip op. at 21), and in which the United States can, as a practical matter, enforce the judgments it issues (id.).

The territorial limits of the majority’s logic should provide comfort to its detractors, and prevent complacency among its enthusiasts. The Supreme Court has yet to issue a blanket opinion prohibiting the U.S. government from acting arbitrarily vis-à-vis non-citizens in its custody and control overseas, whether the constraints on arbitrary action come from the Constitution or from international law. A starting-point for such a decision could be the majority’s statement that “[e]ven when the United States acts outside its borders, its powers are not ‘absolute and unlimited’ but are subject ‘to such restrictions as are expressed in the Constitution'” (slip op. at 35) (citing Murphy v. Ramsey, an 1885 case upholding a statute denying the vote to any “bigamist, polygamist, or any person cohabiting with more than one woman” in the Territory of Utah). However, it seems to me that the majority here is more concerned with what it views as the coordinate branches’ gall in attempting to insulate their activities from judicial scrutiny by relying on a century-old lease, than with articulating a comprehensive theory of what Peter Spiro in his post dubs “constitutional cartography” (a job for us academics).

It comes as no surprise that Justice Kennedy authored the majority opinion in this divisive case, or that his reasoning about the extraterritorial reach of habeas jurisdiction is framed expressly in functional, rather than formalist, terms. Prior to the Boumediene decision, I had begun thinking of a more context-sensitive approach to the extraterritorial application of constitutional constraints and protections in terms of what I call “bounded functionality” (this is perhaps one version of the “something in between” that Roger evokes in his first post on Gerry Neuman’s typology of approaches to the territorial reach of the Constitution). I look forward to continued conversations about how these approaches can inform judicial reasoning.

In his second post, Julian Ku criticizes the majority’s focus “practical and functional considerations” for its unpredictability. In his view, the majority’s willful misreading of Johnson v. Eisenstrager will force government lawyers to assume maximalist, rather than minimalist, interpretations of applicable protections overseas. Whatever the moral merits of this result, Julian worries about the effect on judicial legitimacy of a technique that Justice Scalia-criticizing Chief Justice Roberts-has notoriously derided as “faux judicial restraint.”

Although the majority’s decision certainly has weaknesses, any departure from Eisenstrager is not, in my view, one of them. As Paul Halliday eloquently emphasized in his post about the lack of precise historical analogs, “To ask this question of the past is to seek what is not there: the present.” Julian is probably correct that explicit, rather than disguised, disavowal of precedent is preferable, although I am not convinced that the majority’s discussion of Eisenstrager belongs in the latter category, since I believe Eisenstrager is distinguishable. This is certainly one of the many threads to pursue in future discussions of the Boumediene decision and its significance for apprehensions and detentions carried out by the United States outside Guantanamo.

In the end, this is a case about borders: the borders of habeas jurisdiction, and the border between law and politics. The first has been clarified somewhat, but both remain contested.