Response to Professor Kent’s Post

I want to thank the editors of Opinio Juris for hosting this forum and inviting me to participate, the editors of the Volume under review for their magnificent work in putting together such an impressive and comprehensive set of essays, and Andrew Kent for his thoughtful response to my contribution to the Volume.

Let me here take up the two main criticisms that Professor Kent helpfully offers in response to my essay. The fundamental claim of my contribution is that, while departing from past doctrinal precedents in significant respects, the Supreme Court’s War on Terror cases faithfully carry forward, in changed circumstances, a deep American constitutional tradition going back to the Founding, which, optimistically, I dub our Just War constitutional tradition. The core commitment of this tradition is to the civilized conduct of war in accordance with law. Some of its key doctrinal tenets – designed to implement the fundamental commitment to civilized warfare – were, I claim, a recognition that both the Executive and Congress were constitutionally obliged to conduct war in compliance not with the Bill of Rights (which is part of the municipal law) but with the international laws of war (which comprised the rules of civilized warfare), and, further, that the courts were to play a role both in developing the content of the laws of war and in enforcing those rules (in some contexts) against executive and military officials. However, beginning with the Cold War and with increasing intensity in its aftermath, brought dramatically into view by the War on Terror, these doctrinal tenets have slowly lost much of their force. Most importantly, the status of international law in the domestic constitutional order has been consistently downgraded and is now tenuous at best. This development, with which everyone who follows Opinio Juris is familiar, was reflected most consequentially in the Bush Administration’s open denial that the President is obliged to comply with the laws of war in conducting the War on Terror. Moreover, the emergence of a global terrorist threat, conceived of, novelly, as a “war,” stretched the traditional laws of war to the breaking point. These developments threatened to undermine – indeed, to flip on its head – the Just War constitutional tradition. My argument is that the Supreme Court’s War on Terror cases were a partially successful effort to recapture the fundamental goals of the Just War constitutional tradition, even as the Court departed from some existing doctrinal understandings.

It seems that Professor Kent is dubious about whether the doctrinal tenets I have identified with the Just War tradition were actually ever in place. However, for reasons of space, he focuses on what he rightly takes to be the most controversial claim – that even Congress was constitutionally obliged to follow the laws of war. Of course, this claim flies in the face of contemporary constitutional understandings and much (though not all) scholarship and conventional wisdom about the origins of the “last-in-time” rule. Professor Kent points, in particular, to a number of Marshall Court opinions which he reads as affirming Congress’ constitutional power to disregard international law. In my view, at least some of these opinions should be stricken from the litany of citations for the last-in-time rule, because they simply do not support it. This is a point that many have already made about, for example, The Nereide (1815). More importantly, none of these cases deal with the scope of Congress’ constitutional power but, at most, with the scope of judicial review, which is a wholly different matter. It may be that the Court would have been wary about its own authority to strike down legislation as in conflict with the laws of war, but that says nothing about the “Constitution outside the Courts” and the longstanding understandings in Congress and among leading constitutional authorities about the limits on its constitutional powers over war.

Professor Kent’s second point expresses skepticism about my claim that the courts played an active role in supervising executive war measures. In particular, he doesn’t accept my analogy between 18th and 19th century prize jurisdiction over wartime captures of property at sea and Rasul and Boumediene’s affirmation of judicial jurisdiction over wartime captures of persons. I’m glad that he raises this point, because I take this analogy to be central to the essay. In my view, prize jurisdiction has many important implications for debates over Rasul and Boudemiene. Let me focus on two. First, it shows that, contrary to what many seem to believe, the judiciary is not incompetent to exercise jurisdiction over military measures or, at least, that American constitutional tradition suggests just the opposite. For a century and a half, the judiciary was actively engaged in supervising executive wartime measures both as to matters of fact and law, and, moreover, the matters in which it became involved were sometimes both highly controversial and of signal importance to U.S. military strategies and interests. The judiciary took a leading role in developing the law of neutrality – a crucial part of the laws of war – and it applied rights derived not from the Constitution but from international law to executive military measures. Second, a close look at the 18th and 19th century practice shows that judicial jurisdiction was generally affirmed in those contexts in which it was most needed and the judiciary was most suited to the task. In particular, subject to practical constraints, the courts exercised jurisdiction in those contexts where disputes of fact were most likely to arise and in which considerations of reciprocity were least likely to bring about reliable executive compliance with the laws of war. While in the 18th and 19th centuries, those conditions were present most dramatically in the context of wartime seizures of neutral vessels for allegedly engaging in violations of neutral duties; in our time, and in the context of the War on Terror, these considerations apply most forcefully to military detentions of suspected terrorists. Hence, Rasul and Boumediene should rightly be seen as carrying forward, in contemporary circumstances, this earlier practice.

I am a bit uncertain about exactly in which respects Professor Kent disagrees with these claims. He seeks to explain active judicial involvement in prize cases as arising out of constitutional authorization and perhaps command as well as out of legislation and executive proclamations. Of course, that doesn’t explain why prize jurisdiction was so uncontroversial in the first place or its function within the larger constitutional system applicable to war. In any case, although I don’t disagree with this point, I take the issue in Rasul and Boumediene to be precisely whether to interpret relevant legislation (22 U.S.C. § 2241) and the Suspension Clause of the Constitution as commanding or authorizing judicial jurisdiction over detentions. Without engaging in methodological disputes over interpretation, I take my points to go to the proper interpretation of those provisions, countering arguments about historical practice and the competence of the judiciary in military contexts and offering affirmative support for judicial review where certain conditions (e..g., disputes of fact/lack of reciprocity) are present. Professor Kent also suggests that active judicial review in prize can be explained by the need to protect the titles of captors to the property they seized. I think this claim is, as an historical matter, seriously deficient as a general explanation for the emergence of prize jurisdiction, although it was in the mix, but I’m also uncertain how the point is relevant to the issues. It may be that Professor Kent is suggesting that the titles issue meant that there was a strong national interest in judicial jurisdiction in the prize context that is missing from the contemporary detention context. But that surely is a controversial claim. Putting aside the question of the importance of the national interest in clearing title to prizes, it is undoubtedly the case that the members of the majority in Rasul and Boumediene understood the national interest to support judicial jurisdiction over detentions, and I suspect that many observers, myself among them, agree (although others, equally certainly, disagree). (Putting the point narrowly, just as prize jurisdiction helped establish clear title in captors to seized property in foreign courts, so too Boumediene jurisdiction may help immunize U.S. government and military officials from potential civil and criminal liability in foreign courts). Of course, assessments of the national interest will diverge, but I don’t see any reason to believe that the national interest was uncontroversially present in one case and absent in the other. In any case, my argument is only that the Court’s decisions, including its extension of judicial jurisdiction, should be understood as efforts to carry forward our Just War constitutional tradition – which embraces civilized warfare under law – in the face of many legal, jurisprudential, political, and technological developments that render the traditional doctrines incapable of supporting it.

Again, let me thank Opinio Juris for inviting my participation and Professor Kent for taking the time to make thoughtful comments on my essay.