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Round-Up on Habeas-Stripping at GTMO

[Cross-posted at Balkinization.]

After I wrote my preliminary reactions post the morning the Boumediene case was issued, I was surprised there was not more discussion of this landmark case on the Net. Well, the trickle has now become a torrent, and it will only increase now that the case is in the Supreme Court.

Of course, Lyle has written extensively here about the Hamdan motion to expedite and petition for cert. before judgment. The case has been docketed as No. 06-1169, and the Court will consider Hamdan’s motion to expedite consideration of the petition tomorrow morning.

Most of the Internet discussion on the substance of the D.C. Circuit decision has centered on the primary question that Judge Randolph’s opinion discussed — whether there are any pre-1789 British analogies to the aliens being detained at Guantanamo and, if so, what those precedents show about whether such aliens would have been entitled to petition for a writ of habeas corpus as of 1789.

Here’s Jonathan Hafetz (al-Marri’s counsel in the CTA4 proceedings), on Balkinization. Pete Shindel has a post focusing especially on the cases from India cited in Judge Rogers’s dissent. Pete relies heavily on this superlative amicus brief filed by legal historians in the Rasul case in the October 2003 Term. [Disclosure: The principal attorney on that brief is my colleague, the legal historian Jim Oldham.] I also highly recommend, on the same historical question, Part II of the Argument in this brief filed in the al-Marri case by Gerry Neuman, Harold Koh and Sarah Cleveland.

In this post, Andrew Kent takes a different view — that “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.” Kent concedes, however, that “that conclusion is not free from doubt, given the paucity and opacity of the English sources” — “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. . . . 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.” Based on an article of his in the Georgetown Law Journal, Kent proposes that the question is better answered by reference to the “text, structure and original eighteenth century meaning of the Suspension Clause and the larger Constitution of which it is an integral part.” Based on that analysis, Kent takes a narrow view of the Constitution’s protection of habeas rights for aliens, but even under his test, “there’s a reasonable but not overwhelming case to be made that . . . Guantanamo would be U.S. territory and the writ would be available.”

In comments to Kent’s post, David Jenkins stresses that the Randolph opinion’s British history is woefully uninformed. And Gerry Neuman writes this:

Andrew Kent’s analysis raises two red herrings that need to be steadfastly resisted. One, noted by Peter Spiro, is the claim that eighteenth century history tells us something about the territorial scope of the Constitution with regard to aliens. The fundamental defect with this argument is that it ignores the fact that prior to the twentienth century the Constitution was regarded as territorially limited even with regard to citizens. Of course, citizens can also raise national security and law enforcement concerns abroad. If early practice is no longer controlling with regard to citizens, then it does not tell us what to do about aliens.

The second is the fallacy that the choice is between a Suspension Clause that protects the writ “as it existed” in 1789, and an evolving Suspension Clause that protects the writ “as it existed” as of some later date. This is an absurdly limited statement of the possibilities. No other constitutional provision is interpreted that way. The Suspension Clause should be interpreted using history as a source of insight into its purpose, and evolving understandings of the relationship between the writ and the rest of an evolving constitutional system to determine which later developments are of constitutional dimension. The false dichotomy presented by Justice Scalia in his dissent in St. Cyr is merely an effort at distraction.

Michael Dorf’s reaction is similar to Gerry Neuman’s. He questions the Randolph opinion’s history, but then emphasizes that even if the closest analogues in pre-1789 British law would not point to habeas rights for these detainees, that would hardly be the end of the question:

Nor should that be surprising, for many constitutional provisions mean something different today from what they meant when they were was first adopted. Modern conceptions of free speech, equal protection, interstate commerce, and a host of other constitutional provisions reflect both changed circumstances and changed values. While the text and original understanding of the Constitution are almost always the starting point for analysis of the meaning of any constitutional provision, they are rarely the end point.

Perhaps the distinction between U.S. (or British) territory and foreign territory once made sense as a means of parceling out the jurisdiction of Eighteenth Century courts, but given modern methods of transportation and communication, it makes little sense today. Accordingly, there is no good reason to limit the scope of habeas–absent its valid suspension–to persons held within the borders of the United States or its territories. Yet the Boumediene majority treats the scope of the writ in 1789 as reflecting the full modern understanding.

Those who favor reading the Constitution to mean exactly what it was generally understood to mean at its adoption frequently complain that, if judges depart from the original understanding, then they have no fixed standard by which to ascertain constitutional meaning. The charge, however, is doubly misleading.

First, as the disagreement in Boumediene itself illustrates, discerning guidance for modern controversies from Eighteenth Century sources that were contested even in their day, is hardly a determinate exercise that leads to a single incontrovertible result. Second, one can find functional guideposts for modern understandings that also effectively constrain conscientious judges’ decisionmaking.

With respect to the Suspension Clause, we might begin with the core function of habeas–to prevent arbitrary deprivations of liberty–and the exigencies of warfare. Justice Kennedy zeroed in on these two factors in a separate opinion in the Rasul case. He wrote: “Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.”

As I wrote in my original post, I think that if and when the Supreme Court decides the question, it will hold that the GTMO aliens have constitutional habeas rights — Justice Kennedy’s opinions in Rasul and Verdugo-Urquidez strongly suggest as much. Therefore, the outcome of the case will likely turn on the other prong of the government’s argument, which is the claim that the D.C. Circuit review of CSRT and military commission decisions is an adequate substitute for habeas. (Head’s up to bloggers: We could use more analysis of that question. It’s quite surprising that Judge Randolph did not reach it, since he must have known that his habeas holding would likely not withstand review in the SCOTUS, and because Judge Rogers made such a strong case in dissent that D.C. Circuit review is not an adequate substitute for habeas.)

And in the Hamdan petition itself, my colleague Neal Katyal has a terrific summary of the case against Judge Randolph’s history (pages 13-14); and I especially recommend the petition’s discussion of why Eisentrager is not controlling on the question (pages 15-18). The petition also addresses the adequacy of the D.C. circuit review (pages 21-23).