More on Eisenstrager

by Chimene Keitner

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.

http://opiniojuris.org/2008/06/17/more-on-eisenstrager/

4 Responses

  1. “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.”

    What I have found unsatisfying throughout the entire debacle of Iraq is the [lack of] discussion of the term “war”. There is an unexamined assumption that there is a “war” going on. But is there? Using the word “enemy” isn’t much of an argument. Particularly when the same people were “friends” 20 years ago while they were fighting the Soviets. And what branch of government is authorized to designate someone an “enemy”? Surely the U.S. invasion is an “act of war” by the U.S. upon Iraq which would seem to create a “state of war” between the U.S. and Iraq and, under international law, allows for resistance against the invader. The invasion created enemies. Don’t beat me up too much on this as I don’t claim any proficiency in this field. I’m just trying to understand why I don’t find anyone discussing this persuasive and most of the arguments missing the point. The constitution seems to envision state-to-state relations for purposes of war. Everything else is criminal law. I look to be enlightened here.

    The other unsatisfying discussion is whether there are any limits on executive authority. Within the law, can a president do anything? I thought the constitution placed some limits. But apparently some arguers are of the opinion that there are no limits. If there are no limits then there is no constitution.

  2. The status of a US citizen held as an al Qaeda “security threat” in an Iraq prison guarded by US soldiers was decided in the Omar case decided at the same time as Boumedienne. They would have Habeas privilege, except for the fact that they are held under the jurisdiction of the sovereign government of Iraq and its Central Criminal Courts.

    There is no “war” in Iraq, except in rhetorical terms. The US is currently part of the Multinational Force and under the Security Council mandate may defend itself and detain persons who pose a security threat. If those persons are held only under US authority, they may be entitled to Habeas review. Once the Iraqi government takes an interest, however, it supercedes US jurisdiction.

  3. If you accept that Eisentrager arises from principles of international and national law and not the letter or any particular treaty or statue, then this argument runs smack into the problem that everyone has been closing their eyes and trying to ignore. The enemy has an alternate theory of law that he regards as superior to our law. In his theory, all the members of al Qaeda or Taliban forces have a clear obligation to fight the US in every way possible (including the death of civilians as laid out in the fatwa). This obligation is imposed by God, which in their view is a higher power and deeper obligation than any held to a secular or national power.

    Now if you go back and adjust the quotes, they hold every bit as much to al Qaeda as they did to WWII Germans:

    “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 [God].”

    “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.” [using nation in an Islamic sense]

    Certainly the letter of international law does not accept the view of Islam proposed by Bin Laden or our enemy. But if Eisentrager is not based on the letter of the law but on general principles, then might it not be appropriate to assert that those who adhere to al Qaeda and provide physical support in an area it controls (Padilla, Hamdan, Khadr) are, based on the same mechanism of inferring law from between the texts, “enemy nationals” in a war against an enemy who subscribes to this particular view of Shari’a just as clearly (because their allegiance is just as strong or stronger than a patriotism based on Western nationalism) as the Eisentrager group’s association with Nazi Germany.

    The difficulty in defining “war”, “army”, “government”, “enemy”, and “combatant” in this conflict has been the absence of an identified population of “enemy nationals”. A real army grows out of a nation, and Mao tells us that a guerrilla army is to the population as the fish is to the ocean. However, because the enemy identifies himself by his view of religion instead of by a national location of birth, everyone trips over themselves to avoid mention of this fact less they be accused because of misunderstanding or bad phrasiology of being against Islam itself or being biased against a religion. Until we have a plausible category for the population of support out of which al Qaeda and the Taliban grow, we will create no plausible legal theory (or any other type of theory).

  4. Howard,

    Have you see the new WAPO-ABC Poll? Most Americans agree that these non-citizens are not a part of our polity.

    See question 13.

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