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.

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.

[Chimene Keitner is Associate Professor at UC-Hastings College of Law and the author of The Paradoxes of Nationalism (SUNY Press 2007).]

The first four chapters of Peter’s thought-provoking book send a clear message: U.S. citizenship is not all it’s cracked up to be. The message can at times seem harsh: “Becoming a citizen entitles one to little more than the right to vote, eligibility for some public benefits programs, and freedom from any threat of deportation” (30-31). Little more than … freedom from any threat of deportation! I thought as I read this, my mind full of the stories of the asylum-seekers I represented as a law student at Yale, and the myriad undocumented domestic workers and day laborers trying to eke out a living here in the Bay Area and elsewhere without the sense of basic security that citizens take for granted. (Thomas McCarthy’s recently released movie The Visitor, which I saw as I was reading Peter’s book, poignantly illustrates these themes of security and belonging.) But Peter resists over-valuing these benefits, just as he rejects an account of meaningful political participation that “fetishizes the ballot” (91). For him, the experiences of aliens at risk of deportation confirm his observation that “[w]ere one to draw a line … it would not fall along the citizen/noncitizen divide but would rather distinguish citizens and legal aliens, on the one hand, and those out of status or with no basis for securing it, on the other” (88). One’s “foundational identity” (a concept I would encourage Peter to expound further) does not come from a U.S. passport, but rather from “a Social Security number and a driver’s license” (90). His conclusion? “Where one would expect it to count the most, the rights of citizenship don’t add up to much” (88).

Although Peter assures us that he offers his observations “as a matter of description, not lamentation” (79), it is difficult to avoid detecting nostalgia in his account of the decline of American distinctiveness, which he characterizes as “the fading of America” (40). In discussing the rise of dual and even triple nationality, he seems to take at face value the nationalist (and monogamist) assumption that “[s]ingular affiliations inherently have greater meaning than nonexclusive relationships” (59). Whether or not this is accurate as an empirical matter, I found myself craving a more probative treatment of the normative and conceptual underpinnings of such assumptions, as well as some comparative discussion of relevant examples, such as the increasingly amalgamated citizenries of the European Union.

The real payoff (for me) comes in chapters five and six, in which Peter sets the agenda for future exploration of the intersection and interaction between identities and interests in law, politics, and international relations. For the academic community, his book could well be titled “Beyond Citizenship Studies.” As he presages in the introduction, “[i]f the state no longer dominates identity, it will inevitably lose ground as a location of governance” (6). In his view, the shift from “binary” to “scalar” modalities of territorial presence (101) calls for no less than a reconceptualization of politics.

I have come to think of the requirements for legitimate and effective governance in terms of three C’s: cohesion, commitment, and compliance. Peter challenges us to think about how to achieve these conditions in a globalized world, where “‘everyone is an American’” (76). These challenges are pressing, but elements of them are also perennial, as I have explored in my own work. (Jean-Jacques Rousseau famously lamented that “il n’y a que des Européens.”) Peter’s book documents the fissures in the American melting pot model and deftly points out the shortcomings in various proffered alternatives for dealing with the pluribus that may transcend the unum. Inevitably, many questions remain. But Peter has certainly advanced the collective conversation about what he calls, in an appropriately plural phrase, “the meanings of ‘we’” (5), which are not reducible to decisions about who is and who is not entitled to a U.S. passport.

[Chimène Keitner is Associate Professor of Law, UC Hastings Law School.]



I’m delighted to join this conversation about Susan Benesch’s analysis of the international crime of incitement to genocide. As Susan’s title indicates, she seeks to distinguish this crime from the exercise of free speech rights guaranteed under U.S. law. Viewed in this light, her project forms part of an ongoing dialogue about the interaction between national and international criminal law. Below, I briefly summarize my understanding of Susan’s argument. I then identify two questions for further discussion in this forum and beyond.



Susan is concerned primarily with “major genocides with high degrees of civilian participation” (494 n.40). She observes that, historically, such genocides have been “carried out by state employees, albeit often aided by civilians” (495). Based on this observation, she characterizes incitement to genocide as “speech in the service of the state” (id.). Even “free speech devotees” (id.), she argues, should be loath to protect this kind of speech. However, the Genocide Convention does not provide a sufficient basis for differentiating between criminal speech and protected speech. Susan’s article aims to fill this gap.



Susan sets out to craft a definition of incitement to genocide that accounts for its central role in conditioning people to commit and accept violence (498–500). She endorses a constructivist view of genocide, and rejects “primordialist” accounts of identity-formation that, in her view, “excuse[] the international community from doing much to prevent the next massacre or genocide” (501). I found this part of the article intriguing, as I have spent a great deal of time puzzling through similar issues in the context of my study of nationalism. (See especially Chapter 5 of my book, THE PARADOXES OF NATIONALISM: THE FRENCH REVOLUTION AND ITS MEANING FOR CONTEMPORARY NATION BUILDING).



My sense is that Susan talks about the sociological foundations of genocide because she wants to convince skeptical readers that criminalizing incitement should not be out of the question, even though it involves criminalizing speech. Susan points out that U.S. law criminalizes speech that is “likely to lead to imminent lawless action” (495). However, she finds this test too narrow in the context of genocide, because “[e]ven a small risk of genocide is too much” (495). Instead, she proposes a six-prong test to “aid in identifying (498) the crime of incitement to genocide for the purposes of preventing and prosecuting it.



1. How can we manage different allocations of the values of speech vs. security at the national and international levels?



Susan indicates that her six-part test is intended to provide an interpretive aid, rather than a list of elements of the crime. In other words, her project is not, strictly speaking, a doctrinal one. However, because of the project’s doctrinal implications, it would be useful to engage more concretely the conflict Susan frames at the outset between the U.S. standard for incitement and the international criminal law test she proposes. Even if there is no customary international law against hate speech (492 n.33), is there—or would Susan like to see—a more robust customary international law prohibition of incitement to genocide? If so, does the four-part test applied by the ICTR in the Media case (489 n.17) accurately reflect this standard?



2. What is the appropriate relationship between criteria for prosecution and criteria for prevention?



Susan suggests that accurately identifying incitement presents important opportunities for prevention, because incitement is an inchoate crime (494 n.42). She highlights the U.S. government’s decision not to jam the RTLM signal and prevent the dissemination of genocidal messages in Rwanda (488 n.12), and indicates that her six-part test should inform the deliberations not only of courts, but also of those contemplating “genocide-prevention efforts” (489).



It strikes me as potentially problematic to conflate these two scenarios without more detailed analysis. If we are going to use the six-prong inquiry to identify triggering conditions for the ability—or even obligation—to breach state sovereignty in order to disrupt telecommunications, then we should talk concretely about the parameters of such an obligation, and how it could be operationalized. This is a compelling and important project, which Susan hints at but does not pursue here. If we are concerned with criminal prosecution, it seems to me important to discuss at greater length how Susan’s “reasonably possible consequences” test compares to other criminal law tests regarding probable consequences, so that domestic and international jurisprudence incorporating this test can be predictable, consistent, and legitimate.