More on Eisenstrager

After posting my initial comments, I remained troubled by Julian’s criticism of the majority’s treatment of Johnson v. Eisenstrager. I’d like to offer a few more reflections on that decision here.

The Eisenstrager opinion was certainly based largely on territoriality and citizenship, as Julian points out. However, practical considerations were not irrelevant to the Eisenstrager majority’s decision, or else the majority would not have mentioned them. Although Justice Scalia characterizes the practical considerations raised in Eisenstrager as support for the majority’s holding, rather than part of the holding itself, this seems a difficult distinction to draw with confidence in reading an opinion that was clearly animated by many concerns.

The Boumediene majority explicitly indicates that its functional reading of Eisenstrager is designed to reconcile Eisenstrager with the approach of the Insular Cases and with Reid v. Covert (an explanation that Justice Scalia rejects). So, although Julian is correct that Eisenstrager certainly does not tell us to look only at function, the Boumediene majority is equally correct that Eisenstrager does not tell us to look only at form.

Even to the extent that Eisenstrager does look at “form” (citizenship status plus absence of de jure sovereignty), it is not on all fours with Boumediene because, as the majority points out, the Boumediene petitioners “are foreign nationals, but none is a citizen of a nation now at war with the United States.” The Eisenstrager majority’s opinion is inscribed in, and inseparable from, the traditional statist paradigm in which an individual’s legal standing is determined with reference to his or her country of citizenship, a fortiori in times of war. For example:

– “our law does not abolish inherent distinctions recognized throughout the civilized world between … aliens of friendly and of enemy allegiance”

– “The security and protection enjoyed while the nation of [the alien’s] allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us.”

– “The alien enemy is bound by an allegiance which commits him to lose no opportunity to forward the cause of our enemy; hence the United States, assuming him to be faithful to his allegiance, regards him as part of the enemy resources. It therefore takes measures to disable him from commission of hostile acts imputed as his intention because they are a duty to his sovereign.”

– “The essential pattern for seasonable Executive constraint of enemy aliens [has been laid down] not on the basis of individual prepossessions for their native land but on the basis of political and legal relations to the enemy government…”

The above quotations make clear the importance of the Eisenstrager petitioners’ enemy alien status to the majority’s decision-with an emphasis on enemy, not just alien. The Eisenstrager majority accepts the assumption that a given individual is “faithful to his allegiance,” and that it is therefore appropriate to take “measures to disable him from commission of hostile acts imputed as his intention because they are a duty to his sovereign.” Based on this assumption, and buttressed by the U.S. military tribunal’s conviction of the petitioners for providing intelligence to the Japanese forces in China, the majority (in an early articulation of the concept of lawfare) refuses to place “the litigation weapon in unrestrained enemy hands.”

Justice Scalia’s dissent in Boumediene adopts a monolithic notion of “the enemy” that might be appropriate, if not descriptively accurate, in the context of a war between states. It is neither appropriate nor accurate here. Fighting “the enemy, in Afghanistan and Iraq,” which is how Justice Scalia characterizes the United States’s current military engagement, is not the same thing as being at war with Afghanistan and Iraq. According to lists compiled by the Washington Post, citizens of almost 50 countries have been detained at Guantanamo. Certainly, the Eisenstrager majority would have balked at the notion that the United States could “impute” the “commission of hostile acts” as the intention of each of these individuals “because they are a duty to his sovereign.” Precisely because that is not what the United States is doing here, the Eisenstrager rationale cannot be imported wholesale to resolve the Boumediene dilemma.

Whatever the merits or failings of the ascriptive allegiance approach in Eisenstrager, it does not transform the Guantanamo detainees into enemy aliens. And, even if it remains binding precedent, it does not dictate that alien detainees can never seek review of their extraterritorial detention in federal court.