Author Archive for
Andrew Kent

International Law in the U.S. Supreme Court: A Response to Professor Golove’s Essay

by Andrew Kent

Thank you to Opinio Juris for having me back. It’s always a great pleasure and honor to guest blog at such a terrific forum.

The volume of essays under review is an impressive and extraordinarily useful collection. I learned something—and often many things—from every essay I read. I was consistently impressed with how the authors discussed controversial and complicated subjects with great balance and sensitivity to opposing points of view.

Parroting the format of Part V of the book, I’ve decided to post something in the nature of an additional “response essay” to David Golove’s fascinating essay on “The Supreme Court, the War on Terror, and the American Just War Constitutional Tradition.”

Like Mike Ramsey (Response Essay in Part V.E.) I find much to admire but also some things to question and debate in Professor Golove’s thought-provoking contribution to this volume. Professor Golove argues that the war-on-terror decisions in Hamdi, Rasul, Hamdan and Boumediene were striking departures from more recent precedent and principles, but were fundamentally consistent with three deeper themes from earlier periods of American constitutional history, what Professor Golove calls the three “basic features of the traditional American Just War Constitution”: (A) the President was constitutionally required to observe the laws of war; (B) and so too Congress; and (C) the judiciary had an active role in policing Executive branch compliance with the laws of war (at pp. 564-65).

In this essay, Professor Golove does not extensively discuss the evidence supporting these three claims. He refers the reader instead to two unpublished manuscripts (at p. 564 n.19). I eagerly await the publication of these pieces. I am sure that, like all of Professor Golove’s work, they will be immensely erudite, well-researched and creative. I have to say, though, that I think it might be difficult to fully defend all three propositions. (B) is the most problematic, in my opinion, followed by (C). Proposition (A) is, in my view, partially but not wholly correct, varying over time and context and by historical actor.

Like Professor Golove, but even more so, I am space constrained and so cannot set out much of the relevant historical evidence. I will just note a few cases relevant to claim (B). Historically, the high point of the power and influence of customary international law in the U.S. legal system was in the Founding and early antebellum periods. Yet even at that time, numerous Court decisions, often authored by Chief Justice Marshall, made clear that Congress had the authority to depart from, or to modify for domestic purposes, rules of the unwritten law of nations, including the laws of war. See, e.g., Thirty Hogsheads of Sugar v. Boyle (1815); The Nereide (1815); The Schooner Adeline (1815); The Schooner Exchange v. McFaddon (1812). To my knowledge, the Supreme Court (in a majority opinion) has never once held or suggested otherwise.

There is much to say about Professor Golove’s claim (C), and Professor Ramsey’s excellent response essay makes a good start. I am content to await the publication of Professor Golove’s two articles before fully joining issue on the historical questions, but for now will just make one comment: Professor Golove’s analogy between judicial supervision of the Executive in prize cases in earlier periods and today’s judicial supervision of the Executive’s war-on-terror detention operations (at pp. 569-71 ) is not entirely persuasive to me because I think other factors must be accounted for. Professor Golove reads the history of U.S. courts supervising Executive prize captures as a story about the judiciary independently and assertively securing the rule of law in an area where Executive mistakes or over-reaching could be expected to frequently infringe private rights. So too is aggressive judicial review needed in the war-on-terror detention context, he contends, because the complexities of the conflict make it quite difficult to accurately identify enemies. I think a different or at least supplemental story can be told about why U.S. courts were so actively involved in prize litigation. Briefly, the reasons are (i) the Constitution commanded or at least contemplated it, in Article III’s admiralty clause; (ii) Congress and the Executive commanded or at least contemplated it, in numerous statutes and proclamations which stated or assumed that federal courts should hear prize cases and determine them according to international law; and (iii) in order to get the economic benefit of seizing enemy prizes, the captor needed title to the vessel or cargo that would be respected worldwide; judicial review and sign-off on the seizure provided this good title. Understood as flowing from these premises—either instead or in addition to Professor Golove’s premises—judicial involvement in prize disputes does not provide any large amount of support for the strikingly aggressive judicial review (called “judicial imperialism” by Prof. Ramsey’s response essay) seen in Boumediene, Hamdan etc., especially when, as in Boumediene, the Court overrides policies set by the President and Congress jointly.

As I said at the outset, the entire collection—and most certainly Professor Golove’s provocative contribution—is of the highest quality and well worth a read. Many thanks to the editors and authors for producing such a terrific piece of work.

Boumediene and the Use of History; Boumediene & Munaf

by Andrew Kent

Thanks to Opinio Juris for inviting me back. These things are always fun. I’m not going to try to systematically address Boumediene, but will instead offer a few thoughts about Boumediene‘s use of history and the relationship between Boumediene and Munaf.

1. I agree with much of the Chief’s and Scalia’s criticisms of the Boumediene majority opinion’s aggressive assertions of judicial supremacy over detention decisions in the war on terror. But it cannot be accidental that the Court chose to release Munaf v. Geren on the same day. And if Boumediene is a green light for lower federal courts to exercise substantial control over the military’s legal proceedings regarding captured enemies, Munaf is a red—or at least yellow—light. There the Court goes out of its way to emphasize that the relief ordered by the lower court against the U.S. military was wholly inappropriate and that courts should careful to avoid “unwarranted judicial intrusion into the Executive’s ability to conduct military operations abroad” (slip op. 22). I hope Munaf’s cautions will be noted by lower court judges.

2. Although not implicated directly in either case, I bet the Geneva Conventions played an important behind-the-scenes role in today’s decisions. The Executive has of course long taken the position that alleged members or associates of al Qaeda or the Taliban captured in Afghanistan or elsewhere are not covered by the Geneva Conventions, but that all persons detained in Iraq are. Though in 2004 Hamdan held that Common Article 3 protects al Qaeda etc. personnel, that provision is merely a floor to outlaw the worst kind of misconduct by U.S. personnel. So generally speaking, Iraq conflict detainees have pretty comprehensive legal protections under Geneva (and Iraqi law, where applicable), whereas Guantanamo detainees have been perceived to be in a “legal black hole,” to use the popular metaphor.

My sense is that at least three justices (Kennedy, Souter and Ginsburg) simply think it is unacceptable for persons in U.S. detention to be held outside the protections of either the Constitution or a robust international legal regime like Geneva. Recall that Hamdi’s plurality pointed to Army regs implementing Geneva procedures as an example of acceptable due process. And Boumediene suggests that constitutional habeas may be unavailable for some foreigners held abroad if “there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power” (slip op. 65). This seems likely to be a reference to Geneva. Munaf’s unanimous deference to the Executive could well be motivated in part by the comfort the Court draws from the presence of Geneva in Iraq.

Back in the black hole, the government was essentially informed today that procedures and standards devised by the Executive or Congress for Guantanamo will never pass muster with this Court unless Article III courts are involved and able to enforce the Constitution. Rasul, Hamdi and Hamdan invited the President and Congress to create the kind of “non-constitutional” and “non-habeas” framework that Boumediene finds clearly unconstitutional. This is bad news for the advocates (e.g., Jack Goldsmith, Ben Wittes, Neal Katyal) of creative statutory detention and review procedures more appropriate for the novel circumstances of the war on terror.

In light of the significant losses the Executive has suffered in the Court in Guantanamo cases (Hamdi, Hamdan and now Boumediene), as well as the awful prisoner abuse and the diplomatic and public relations disasters, and one wonders whether even the Executive might now think we would have been better off maintaining from the outset that Geneva did not apply to al Qaeda etc. personnel, but that it would be applied anyway as a matter of humanity and good policy.

3. Judges and lawyers are often cautioned that they misunderstand and misuse history when they try to force it to decisively answer current legal problems. According to historian Jack Rakove: “Professional historians should have no problem in admitting ambiguity or uncertainty in our findings, but political and legal disputes leave little room for scholarly hemming and hawing.” Here’s historian Michael Bellesiles: Unlike advocates arguing for a client or judges justifying a decision, “[h]istorians doubt any case for which all the evidence falls consistently on one side and work on the assumption that the past is pitted with ambiguities and paradoxes.” The criticisms of lawyers and judges often seem apt. (I know that I—lacking a graduate degree in history—live in fear that I am getting my history wrong in some way. And I probably am.)

The Boumediene majority opinion appears to handle the complexities of constitutional history and its application to current disputes in a way that should please most historians. The historical question is whether, as of 1789 when the U.S. Constitution went into effect, aliens could have used the common law writ of habeas corpus to challenge in civilian courts on the mainland their detention as combatants by the military in a location under the de facto control but not de jure sovereignty of our country. The Boumediene majority considers the historical evidence but carefully and modestly declines to draw any firm conclusions because the evidence is ambiguous and incomplete and our eighteenth century predecessors did not leave record of having confronted and resolved the precise issues we face today. I have previously concluded much the same thing about the historical evidence, in a 2007 law review article and post for the Opinio Juris symposium about the D.C. Circuit decision in Boumediene.

Before today, the Court had a very different view. The five justice majority in Rasul v. Bush (2004) reviewed English habeas history and concluded that: “Application of the habeas statute to persons detained at the [Guantanamo Bay military] base is consistent with the historical reach of the writ of habeas corpus. . . . In the end, the answer to the question presented is clear.”

But as a detailed and erudite recent article on this topic by Professors Paul Halliday and G. Edward White (cited by the Boumediene majority) notes, “[t]he historical underpinnings of Stevens’ analysis [in Rasul] were slight” (p. 116 of the SSRN version). And lo and behold, the Court has recognized and corrected its error. In Boumediene, all nine justices reject the faulty historical analysis in Rasul. The Boumediene majority opinion correctly notes that the history of the writ provides “no certain conclusions” (slip op. 16). The Court finds “little” historical “support” for the claim that common law courts sitting in England prior to 1789 entertained “petitions brought by alien prisoners detained abroad” (slip op. 18-19). In fact, the Court notes, there is a “lack of historical evidence on point” (slip op. 22). All five justices in the majority signed on the opinion—and these statements—in full. Souter notes in his somewhat odd concurrence that he “join[s] the Court’s opinion in its entirety.” The four justices in dissent reject Rasul’s analysis and conclusions and instead find that the available evidence points the other way. I think they go too far by finding a clear answer, but their historical argument is, in my view, stronger than the Rasul majority’s.

By contrast with the Court’s approach today, the Brief of Legal Historians as Amici Curiae submitted in Boumediene argued that the “Court’s conclusion in Rasul is fully supported by the historical record.” Given his vote in Boumediene, not even Justice Stevens, the author of the Rasul majority opinion, appears to believe that anymore. The amici legal historians also wrote that “prisoners of war and alleged enemy aliens could challenge the legality of their detention by way of habeas corpus. Even where in these cases courts ultimately declined to discharge the petitioner, they reviewed the basis of the prisoners’ detention on the merits.” The Boumediene majority correctly notes that whether the key cases’ holdings “were jurisdictional or based upon the courts’ ruling that the petitioners were detained unlawfully as prisoners of war is unclear” (slip op. 17).

Rather than attempt to answer a momentous question of U.S. constitutional law based on an ambiguous and incomplete historical record, the Court today quite properly turns to other sources of constitutional meaning, namely text, structure, the Court’s precedent and functional, consequential and prudential considerations. Well done.

Methodologically, that is. On the substance of many issues, the Court is shaky. It badly misreads key precedents (Johnson v. Eisentrager, Balzac v. Porto Rico). It somehow convinces itself that “separation of powers” principles written by the Founders into the Constitution positively require that the federal judiciary have the final say about the legality of all executive detentions, even those occurring during wartime outside of the United States and involving noncitizens. It utterly fails to answer the Chief’s fairly devastating dissent. I am still fond of my textual-structural approach to the territorial scope of the Suspension Clause (in the article and post linked to above), but will not reprise it a third time here.

Notwithstanding these and other disagreements, I applaud the Court’s new-found methodological caution regarding the use of history.

Opinio Juris Symposium: The Textualist Case for Congressional Control Over Responses to Military Attacks

by Andrew Kent

One of my major purposes in discussing Professor Ramsey’s treatment of the scope of the president’s power to respond to attacks was to suggest that here, on this topic, his book may not meet its goal of giving dispositive interpretive weight to the written constitutional text as understood by Americans at the time of ratification. To the extent, then, that my initial post savored of “abstract intent-oriented reasoning” rather than textualist originalism, I failed to explain myself clearly enough.

As I said in my earlier post, I find Professor Ramsey’s analysis of the President’s power to respond to attacks too focused on the Declare War Clause. Because he interprets “declare” to mean only that Congress may begin war, responding to already existing warfare against the United States is not a declaration and therefore not a congressional prerogative. His “executive power” default rule means this power must be wholly the President’s. It can be exercised offensively and “without limitation,” Professor Ramsey suggests, unless Congress can pass a restrictive statute by a veto-proof margin.

But, as I suggested before, this analysis downplays other relevant clauses of the Constitution. In reading the Constitution on this issue, my background assumption is that a nation attacked has a full spectrum of possible responses, ranging from doing nothing to using all of its resources to obliterate the enemy’s homeland. Deciding whether and how to respond is a policy question of substantial moment. In the eighteenth century, there were several common ways of responding to attacks and other serious provocations by another country, each of which would be located somewhere between the poles of my spectrum of potential responses. A nation could strike back by issuing licenses to private seamen to attack the aggressor’s shipping. This is the Marque and Reprisal Clause, found in Congress’s Article I. A nation could impose an embargo or other retaliatory commercial sanctions. This is Congress’s Foreign Commerce Clause. A nation could denounce treaties of amity, alliance or commerce previously contracted with the aggressor. This, as I suggested in a recent article, is Congress’s power under the Law of Nations Clause (giving power “to define and punish . . . offences against the law of nations”). A nation could refuse admittance to, or expel once admitted, individual subjects of the aggressor nation. This is Congress’s power over naturalization and, as Necessary and Proper to implementing that, immigration and deportation. A nation could authorize its public warships to seize enemy warships or private shipping. This is Congress’s power to make rules concerning “captures.” If the enemy’s conduct violated international law, Congress could use Article I powers (under the Law of Nations and Inferior Tribunals Clauses) to institute criminal prosecutions against captured enemies.

These are all powers to calibrate and moderate, for policy reasons, the United States’ response to provocations. These powers have both positive and negative components. They authorize responsive measures; but they are also powers to decide not to respond to hostilities by full-scale warfare. These powers are all given to Congress. (With one exception: another common way a nation might retaliate short of warfare – by expelling the aggressor’s diplomats – is pretty clearly a presidential power, either implied from the duty/power to receive foreign ministers or found, though Professor’s Ramsey’s reasoning, in the Vesting Clause.)

Congress’s prerogative to make the policy decisions about how to measure and target the nation’s responses to hostilities is, I believe, clearly found in the Constitution’s text. Under Professor Ramsey’s theory, these cannot then be within the “executive power” of the President. Putting aside that textual theory and relying just on common sense, it is not hard to see why this must be true. These congressional powers would be substantially or wholly vitiated if the President could decide on his own that the proper response to an attack was full-scale offensive warfare. It is not an answer to say that Congress could always limit the President’s discretion by statute and therefore protect its responsive powers. Because he is continually in office (while Congress has lengthy recesses), and is a single and hence fast decision-maker, the President could react faster than Congress to an emerging crisis and outrun Congress’s ability to pass a restrictive statute by a veto-proof margin.

Adding up all of these congressional powers to calibrate hostilities, joining them to the Declare War Clause, and giving them the fulsome scope suggested by the Necessary and Proper Clause, we have, I believe, a nearly complete textual vesting in Congress of the power to decide how to respond to enemy attacks. Several parts of the Constitution – the Commander-in-Chief Clause; the duties to protect implied by President’s oath, the Take Care Clause and the nature of the office; and the fact that the Constitution contemplates Congress but not the President taking recesses – suggest to me that the President has textual authority to repel hostilities launched against the United States. And when the speed of events and a congressional recess mean that Congress cannot be consulted in time, the President’s would have authority to move beyond the strictly defensive and take effective offensive actions designed to preempt further enemy attacks likely to occur in the near future. But the nearly-full spectrum of responsive powers given to Congress, and the fact that the Constitution contemplates the President convening special sessions of Congress, suggest to me that the President has a constitutional duty to convene Congress and take its direction as soon as possible. Until that time, the President has a constitutional duty (Take Care Clause) to protect the nation in a way that preserves as much as possible the constitutional discretion of Congress to decide how to calibrate the nation’s response to attack.

Would President Obama, if he were to take office in 2009, have constitutional authority – independent of any authorizing statute like the post-9/11 AUMF – to attack al Qaeda forces holed up in Pakistan, with or without the consent of the Pakistani government?

Opinio Juris Symposium: The President’s Residual Power to Use Military Force

by Andrew Kent

[We are very pleased to have Andrew Kent's participation in this online symposium on The Constitution's Text in Foreign Affairs. J. Andrew Kent is an associate professor of law at Fordham University School of Law. Although he is new to the academy, Professor Kent has already published important works in the area of foreign relations law including "A Textual and Historical Case Against Global Constitutionalism", 95 Georgetown L. Rev. 463 (2007) and "Congress's Underappreciated Power to Define and Punish the Law of Nations," 85 Tex. L. Rev. 843 (2007). ]

Like Professor Ramsey’s previous work, I found The Constitution’s Text in Foreign Affairs to be exceedingly thoughtful, careful, even-handed and provocative. I’m a huge fan of Ramsey’s work, including this book. Today’s format, however, suggests I should poke and prod and critique, not flatter. So I will use Ramsey’s discussion of the President’s power to respond to a state of war created by an enemy attack on the U.S. to raise some questions.

The Constitution’s Text argues that when Article II vested “the executive power” in the President, it transferred a knowable, definable quantum of what eighteenth century Americans would have understood to be discretionary power to act independent of the legislature in the realm of foreign affairs. But unlike in the British constitution, the model for many executive power theorists read by the American Founders, the U.S. Constitution gave several key pieces of executive power to Congress as a whole or the Senate, including the power to declare war, issue letters of marque and reprisal, and approve treaties. Ramsey argues that the best meaning of the Constitution is that these exceptional grants of executive power to other branches must be read strictly, and that all residual executive power, not given to Congress or the Senate, went to the President. Ramsey further argues that “declaring war” meant, to an eighteenth century audience, initiating hostilities in the first instance by either word or deed. The President cannot intentionally begin a war, then, when the country is at peace. But all other war powers not given to Congress remain with the President, Ramsey argues. This means, among other things, that when the U.S. is attacked by another country and a state of war thereby created, the President has independent constitutional authority to respond as he chooses.

On this issue, The Constitution’s Text follows through only partially on its textual method; it gives insufficient weight to the Constitution’s truly massive transfer of “executive” war power away from the American Executive. The Declare War Clause and Marque and Reprisal Clause are discussed at length but somewhat in isolation. Many other “executive” war-related powers, clearly granted to Congress by the Constitution, receive shorter shrift in the book’s discussion of force initiation responsibilities – the powers to raise and support armies and navies, make rules and regulations for the armed forces, make rules concerning captures, constitute courts (for condemnation of prizes of war or trial of enemy war crimes, e.g.), call out the militia, impose embargoes and other trade sanctions (Foreign Commerce Clause), and punish offenses against the law of nations. With the exception of the Commander-in-Chief Clause and treaty power, every single identifiable war-related aspect of eighteenth-century “executive power” named in the Constitution is in Article I, not Article II. Since war was, in bulk, given to Congress, and since the Necessary and Proper Clause is also in Article I, why isn’t it textually-structurally more plausible to read the Constitution as commanding the reverse of Ramsey’s default interpretive rule: war powers are congressional unless clearly given to the President?

A large part of Ramsey’s answer relies on the precise wording of the Declare War Clause. Because he interprets “declare” to mean only that Congress may begin war, responding to already existing hostilities is not a declaration and therefore not a congressional power. But this ignores other relevant clause. The Marque and Reprisal Clause authorizes responsive, defensive (as well as offensive) force. When the U.S. is attacked or molested, Congress may strike back by issuing licenses to private seamen to attack the aggressor’s shipping. What becomes this power if an enemy attack automatically triggers the Executive’s power to respond at will with whatsoever amount of force it desires? Congress’s power to calibrate national responses to provocation is lost. Similarly, Congress’s powers to authorize U.S. warships to “capture” foreign vessels and its power to lay embargoes and other retaliatory commercial restrictions – additional powers to respond to provocation in a measured and targeted manner – are substantially vitiated by Ramsey’s reading of the Declare War Clause. Moreover, Congress’s negative power to decide against force as a response to provocation – recognized as crucial by, for example, Washington, Adams, Jefferson, Madison, Marshall, Iredell, Monroe, Gallatin, Gerry, Knox and others – is gone. A complete textual-structural account of war powers must, I think, account for the significance of Congress’s powers to decide whether and when to use responsive force short of war, or even no force at all.

The Constitution’s Text slights illuminating judicial doctrine and post-Founding executive-congressional practice on this issue. Two Marshall opinions are on point. Brown v. United States (1814) showed that the Declare War Clause must be read in light of the Captures Clause. And Little v. Barreme (1804) held that congressional statutes authorizing only limited responses to enemy provocation bind the Executive. Notably, the executive order at issue in Little was an isolated instance where President Adams did not wholly defer to Congress to decide how to respond to France’s Quasi War against us. Similarly, the practice of President Washington in the face of Indian attacks on the U.S. and even formal declarations of war by Indian nations was to allow Congress to decide how to respond. Ramsey’s discusses but steeply discounts these precedents, for reasons with which I do not agree.

For example, he warns that using post-ratification evidence “carries its own caveats and dangers. Once the Constitution was ratified and its government began operating, American leaders developed personal, political, and institutional commitments to views not necessarily founding upon anything in the Constitution’s text” (p.74). Ramsey is particularly wary about any evidence of constitutional meaning from beyond the “immediate post-ratification experiences of 1789-1797” (75), apparently because it is distant in time from the Founding, giving more time for political etc. bias to accrue and linguistic usages to change. As a result, the Constitution’s Text consistently privileges the writings of Europeans who shaped the intellectual worldview of the Founding generation by writing about law, politics and governance before the Constitution was drafted (e.g., Blackstone, Locke, Grotius, Vattel, de Lolme, Montesquieu), over the directly expressed views of Founding generation Americans interpreting the actual Constitution after it was put into practice.

It seems to me, though, much easier and – hence ultimately more accurate – to understand and discount the potential biases of familiar American men (how many volumes do we have by and about Hamilton, Washington, Adams, Jefferson, etc.?) holding familiar government positions than it is to implement Ramsey’s preferred method: doing the difficult work of analysis, inference and translation required to, first, accurately understand eighteenth century British and European politico-legal concepts like “executive power,” “legislative power,” “declare” and “war,” and then understand how Americans assimilated them into their unique world view, and how their meanings would have changed as they were molded and rearranged into the wholly novel U.S. Constitution. Pre-Constitution concepts and language are, of course, vitally important tools of analysis. But not more important, I think, than post-ratification commentary and practice directly on point.

To understand the President’s power to respond to hostilities initiated by others, The Constitution’s Text devotes the same space to Englishman Richard Lee’s little known 1760 treatise on the international law regarding war-time seizures of shipping as it does to the actual practice of government under both the Washington and Adams administrations. If a rock-solid methodological commitment required this choice – say John Yoo’s sometimes-expressed claim that the Constitution’s legitimacy derives only from its adoption by the People in 1787-88, and therefore any post-dated evidence has little value – I could better understand Ramsey’s choice. As it is, he describes his project as attempting to determine the Constitution’s meaning to ordinary Americans at this time of ratification (vii, 8-9). Stated at this level of generality, this goal wouldn’t seem to require the choices about evidentiary weight made in The Constitution’s Text.

I have a few other issues with Ramsey’s discussion of the power of the President to respond to attacks:

Kent on Boumediene/Odah Guantanamo Litigation

by Andrew Kent

[Andrew Kent is a Climenko Fellow at Harvard Law School and beginning next year will be a professor of law at Fordham Law School]

Let me start by thanking Opinio Juris for giving me a chance to offer some preliminary thoughts about the D.C. Circuit’s recent decision in Boumediene / Odah Guantanamo detainee litigation.

1. The threshold statutory issue decided by the D.C. Circuit does not seem difficult. I don’t see a plausible argument that the Military Commissions Act (MCA) did not withdraw the court’s jurisdiction over these cases. In an amusing little spat that illuminates this point, the majority and the dissent in Boumediene / Odah insisted on emphasizing different phrases in the MCA to find that jurisdiction had clearly been withdrawn (Compare Majority at 10-11 & nn. 3 & 4 and Dissent at 9-10). I find it hard to believe that even the Supreme Court – which displayed its ability to creatively interpret statutes in Rasul v. Bush and, arguably, Hamdan v. Rumsfeld as well– will agree with the detainees’ reading of the MCA.

2. The hard and interesting questions concern, of course, the implications of Congress’s withdrawal of jurisdiction. The majority and dissent each proceeded on the assumption that the MCA was not a formal congressional suspension of the writ based on the existence of the predicates mentioned in second clause of the Constitution’s Suspension Clause (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”). Rather, the majority and dissent both asked whether, as an ordinary statute affecting the availability of the writ, the MCA unconstitutionally suspended the privilege of the writ. This inquiry obviously requires a baseline. But as the government correctly noted in one of its D.C. Circuit briefs, “The Supreme Court has never decided whether the meaning of the Suspension Clause was fixed in 1789, or whether the Clause might evolve consistent with the expansion of statutory habeas over the course of American history.” The detainees picked the 1789 baseline (which the Supreme Court indicated in INS v. St. Cyr is the floor, but maybe not the ceiling). The detainees argued that Rasul had confirmed that these detainees “were entitled to the writ under the common law, and would have been entitled to the writ as of 1789 when the Constitution was adopted;” and that the MCA is unconstitutional because their baseline “right to the writ as of 1789 is protected by the Suspension Clause.” Addressing and rejecting the detainees’ argument, the majority opinion reviewed old, mainly English, precedents and treatises and held that “given the history of the writ in England prior to the founding [of the United States in 1789], habeas corpus would not have been available in 1789 to aliens without presence or property within the United States” (Op. at 17). The dissent responded that the “well-considered and binding dictum in Rasul” (Dissent at 1) to the contrary should bind the D.C. Circuit and, in any event, while “[t]here may well be no case at common law” in England before 1789 that is factually four-square with the Guantanamo detainees’ situations, “[t]he question is whether by the process of inference from similar, if not identical, situations the reach of the writ at common law would have extended to the detainees’ petitions” (Dissent at 12-13). Parsing a number of eighteenth- century English cases, and “piecing together the considerable circumstantial evidence” (Dissent at 13), the dissent found that the English common law writ would have reached aliens at Guantanamo.

Let me put aside the procedural question of whether the Rasul majority’s dictum about the reach of the common law English writ of habeas corpus circa 1789 is binding on the D.C. Circuit. Focusing just on the substantive issue, I think it is absurd that a vastly consequential U.S. constitutional decision would be made by a handful of judges (a majority of two on an appellate court or five on the Supreme Court) on the basis of thin “circumstantial” evidence from a few old English sources. I will first discuss the historical evidence and then suggest why I think there is a better way to decide this constitutional issue.

As I argued in a recent article (cited for a different point by the Boumediene / Odah majority opinion in footnote 11), the better reading of the available historical materials suggests that the common law English writ would not have been available to aliens, especially enemy combatants or prisoners of war, in foreign territory outside the dominions of the British Crown. But that conclusion is not free from doubt, given the paucity and opacity of the English sources. I am not aware of any cases, and the parties and judges did not cite any, that actually addressed whether an alien then detained outside the realm or dominions of the British Crown was entitled to petition for a writ of habeas corpus. It is as clear as these things get that noncombatant, non-enemy aliens within the realm and dominions of the Crown were thought to be under the “protection” of the “laws” and that most likely included habeas. There were a few famous eighteenth and early nineteenth-century instances where such aliens within Britain successfully invoked the writ. The scanty available evidence suggests, however, that an American prisoner held in Britain in the late eighteenth century during the Revolutionary War would likely have been denied the benefit of the writ.

But the English (and American) cases discussing these issues are few, and the case reports brief and sketchy, making it difficult to say with certainty exactly what English law was. And more generally, it is a mistake to think that British “constitutional” law – made up of an uncertain amalgam of statutes, customs, practices, judicial decisions, and theories drawn from famous historical episodes – had wholly fixed and knowable content. For example, the American Revolution occurred as a result of, among other things, bitter and unresolved disputes between colony and metropole about first principles of English constitutional law, such as the extent to which unwritten customary privileges and rights of Englishmen were available to colonials and, if so, trumped Parliament’s legislation. A seemingly basic issue like whether Parliament could legislate at all regarding the internal affairs of the colonies was disputed. To this day, legal historians argue about whether Britain or America had the better of these legal arguments. More to the point, the availability, scope and procedural protections of habeas even for Englishmen in England see-sawed throughout the seventeenth and eighteenth centuries, as a result of shifting power, interests, and alignments between Parliament, the Crown (or the dictator during Cromwell’s time) and the Crown’s various civil, criminal, military, administrative and ecclesiastical courts. (Historian Leonard Levy’s book Origins of the Bill of Rights has a succinct discussion of this.) In treason cases and others that the Crown alleged involved the safety of the state, judges sometimes accepted the Crown’s say-so and denied the prisoner any habeas review; other times judges required factual detail about the reason for detention from the executive (see Levy). How these vicissitudes would have affected the availability of habeas for unlawful combatant aliens in the realm or dominions, much less abroad, is probably impossible to say with certainty. Certainly the few English cases do not definitively resolve the issues and tell us the exact content of the common law writ in 1789.

And the translation of all of this to the American context is quite difficult. For example, prior to American independence, the most famous liberty-expanding improvements to the English writ were statutory; there were disputes between colonial Americans and British officials about whether Americans benefited from those statutes, or only from the common law writ. The detainees in Boumediene / Odah seek to avoid this issue by arguing only that the “common law” writ – not the English statutory writ – would have protected them in 1789. But it seems quite difficult to determine how English judges would have decided the few cases relied upon by the detainees which are perhaps very roughly analogous to the facts of Boumediene / Odah – much less a directly on-point hypothetical case – if there had not been the famous statutory proclamations about the importance and availability of the writ, even if the precise procedural improvements introduced by statute were not technically at issue in these cases. Moreover, it is an exceedingly hard question whether the precise type of sovereignty that the United States exercises over Guantanamo Bay makes that territory sufficiently analogous to the overseas dominions of the British Crown in which the common law writ was apparently available in 1789. Given the stakes of the U.S. constitutional question we are addressing, I don’t believe that this and related questions can be answered satisfactorily with a few eighteenth-century English case reports and, more importantly, I don’t believe that they should be answered in that manner.

There is perhaps a better way to think about the issue – better methodologically because it gives primacy to the written text of the Constitution, and better substantively because it allows Congress instead of courts to make the relevant policy choices. In my recent article, I examined the text, structure and original eighteenth century meaning of the Suspension Clause and the larger Constitution of which it is an integral part. I argued that the Constitution created a system in which robust individual constitutional rights – including habeas rights – were available for people, whether citizens or aliens, within the United States, but that U.S relations with aliens abroad were governed only by the much more flexible and inconsiderable protections of international law, diplomacy and policy choices by the political branches of the U.S. government. I further argued that the Constitution diffuses, checks and balances government power domestically, in order to preserve domestic liberty and the rule of law, but concentrates and frees external powers to allow the political branches of the U.S. government to act forcefully and coercively against the outside world to protect the freedom and liberty of people in the United States. Turning to the Suspension Clause, recall that it provides that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” I argued that:

The [Suspension] Clause allows suspension only in cases of “Rebellion or Invasion.” Both terms refer to conflicts internal to the country. If the only two permissible triggers for suspension are internal events, it follows that the writ cannot be suspended based on purely external threats. . . . If courts extend constitutional rights to aliens abroad that are enforceable through habeas, and if the availability of some habeas review is found to be constitutionally required (that is, protected from “suspension”), there could occur situations where the lack of a domestic invasion or rebellion prevent suspension, even if the political branches correctly determined that “the public Safety . . . require[d] it.” In this situation, the Judiciary would be encroaching on the primary province of the Executive and Congress: the political branches are textually and structurally given the responsibility for national protection, especially beyond the borders of the United States. This structural reasoning provides a way to think about the availability of the writ outside the fifty states of the United States. Assuming that the writ should not be available anywhere that the political branches could not, if the public safety required, temporarily suspend it, the writ should only be available in territory over which the United States exercises such pervasive and persistent sovereignty that a hostile military incursion could be fairly described as an “invasion” vis-à-vis the United States, or an armed insurrection could fairly be described as a “rebellion” vis-à-vis the United States.

I don’t want to pretend that this is a perfect answer to the difficult questions raised by Guantanamo. In fact, it is not clear to me what result would flow from applying the “test” I suggest to Guantanamo. I think there’s a reasonable but not overwhelming case to be made that, under this test, Guantanamo would be U.S. territory and the writ would be available. My larger point is that it’s important to shift the focus away from a few old English case reports and towards the core textual and structural features of the U.S. Constitution, a document designed both to protect liberty and to protect national security of the United States.

3. I want to conclude with a few thoughts about the future. First, I am interested in the potential for interplay between detainees’ Suspension Clause arguments and the Supreme Court’s recent statutory interpretation practices. Some commentators have praised the Court’s creative statutory interpretation in Rasul and Hamdan as the exercise of passive virtues that avoided the need to decide difficult and controversial constitutional issues. Similarly, the Court has declined to date to decide the difficult constitutional question whether the Suspension Clause protects 1789 habeas or evolving and expanding habeas. If the Court in the future decides that the Suspension Clause evolves, any previous decision whether to expand the scope of habeas has suddenly become a fateful question of potential constitutional magnitude. If habeas evolves and is protected from suspension as of x date, every time before and until x date that Congress is deemed to have added protective procedures or expanded the availability of the writ to new classes of persons, it has effectively amended the Constitution and prevented future Congresses from changing their mind. In these circumstances, judicial statutory interpretation can have the effect of making constitutional law. A court’s previous creative interpretation and expansion of habeas statutes would all of the sudden look pretty activist and, to my mind at least, unwise.

Until and unless the Supreme Court clarifies that the Suspension Clause protects 1789 habeas, not evolving habeas, I think the Supreme Court is duty bound to be less willful in its interpretation of congressional statutes that concern habeas. Until the fixed-evolving issue is clarified, it might arguably be appropriate for courts to require a very clear statement from Congress before habeas statutes are interpreted to expand the writ. Similarly, it might arguably be appropriate for courts to stop requiring a clear statement before statutes are interpreted to contract the availability of habeas. The Constitution gives Congress authority to control the jurisdiction of the lower federal courts (and, in some instances, the Supreme Court). Congress has authority to decide whether to suspend habeas corpus entirely. These “greater” powers suggest that Congress too has the “lesser” powers; as long as it stays above the 1789 baseline, Congress should be allowed to make the policy decisions of potential constitutional magnitude about the expansion or contraction of the writ.

Second, I think it’s likely that interesting alien vs. citizen equality claims will be litigated and perhaps decided soon. Hamdan’s brief to the Supreme Court, for example, argued that reading the Detainee Treatment Act of 2005 to strip federal courts of habeas jurisdiction over his case would violate Equal Protection guarantees found in the Fifth Amendment to the U.S. Constitution. He argued that the distinctions that determined whether habeas was available or not (alien vs. citizen, Guantanamo versus in the United States) could not constitutionally be drawn by Congress. The Court did not reach that issue, but that is certainly not the last time the argument will be made. As I noted in my recent article, the Supreme Court has never held that aliens outside the United States or its territories have individual constitutional rights. And a number of important statutes relating to national security presuppose that they do not. Holding that aliens outside the U.S. and its territories do in fact have individual constitutional rights would be vastly consequential, impacting and – I believe, hampering – law enforcement, intelligence, military and diplomatic functions of the U.S. government in myriad, significant ways. The precise question regarding the constitutional status of the specific piece of property at the Guantanamo Bay naval base is a close and difficult one. Guantanamo is, in many respects, U.S. territory. But detainees in this and future conflicts can and will make similar arguments about other U.S. bases and outposts in other countries which are leased long-term from host nations or held de facto for the long-term by the U.S. military.

I think it would be dangerous and unwise for the Supreme Court to decide that potentially all aliens in the world outside the U.S. and its territories have individual constitutional rights. Clear and sensible lines need to be drawn to determine what is or is not a territory of the United States in which aliens have constitutional protections. I am working on an article that argues that these lines should be drawn by the political branches of the U.S. government through treaty or statute, or by constitutional amendment, but certainly not by the courts. So I’ll have more to say about this issue later. If the Supreme Court does, in the near future, hold that aliens outside the U.S. and its territories have individual constitutional rights, it will likely be in the form of the mushy ad hoc judicial balancing that Justice Kennedy has signaled he favors (see his concurrences in Rasul and United States v. Verdugo-Urquidez). Martin Lederman blogging at Balkinization appears to agree that the Kennedy approach is the one the Court will take. The amount of uncertainty (and litigation) that such an approach would create for the U.S. military, intelligence community, law enforcement, etc. would, to my mind, be intolerable.