Through the lens of legality: detention without judicial review
3 Through the lens of legality
Detention without judicial review 1
As judgments in different countries increasingly build on each other, mutual respect and dialogue are fostered among appellate courts. Judges around the world look to each other for persuasive authority, rather than some judges being “givers” of law while others are “receivers.” Reception is turning to dialogue.
(Heureux-Dubé 1998: 17)
To initiate the application of our model of legitimacy we will begin with the lens of legality. To be sure, it is difficult to arrive at definitive conclusions about the illegality of a policy, even if the highest court in the land has ruled it so. It is extremely likely that there will be dissenting opinions, and thus fully extinguishing the argument for the legality of a policy is nearly impossible. Therefore, as will be the case throughout this work, we will speak to degrees of legality and not all-or-nothing conclusions. With that said, what we will find in this chapter on the issue of detention without judicial review is that in three separate cases, using different bodies of law each time, the US Supreme Court ruled that the administration and the Congress had overstepped the bounds of legality, thus affecting the legitimacy of the policy and the regime employing it. Nonetheless, we will also see that under a new president the Supreme Court has fallen silent on this question, after having boldly stepped into the fray.
Much of the original analyses put forward on the “war on terror”—whether on the use of abusive interrogation methods, a broadening of the rules governing the use of force, or the conditions of detention—concluded that this behemoth in global affairs abandoned its international legal obligations by analyzing domestic and international laws as inapplicable to their circumstances. However, it is suggested here that this characterization of the US can be understood as an oversimplification that obscures the more subtle role of the judiciary. The executive branch of the US is responsible for conducting military operations and executing the laws of the nation. As well, we know that international legal obligations are not contingent on the inner workings of a government or on internal law (Vienna Convention on the Law of Treaties, Article 27). Yet an analysis overlooking the interplay of all three branches of government would be incomplete. For a fuller discussion of the legitimacy of a policy it is necessary to widen our purview to delve into the work of the highest national court and how it managed the interaction with the executive and the legislature on the issue of wartime detention.
As explained in the previous chapter, the executive branch attempted to entirely exclude the judiciary from playing any role in the “war on terror” when the President signed the military order brought to him in a private lunch by the Vice President shortly after the invasion of Afghanistan. The order was intended to remove all courts (civilian, military, or international), to permit indefinite internment, and to limit all proceedings (if there were to be any at all) solely to the closed military commissions created by the President. This certainly is one of the reasons why two years after the opening of the Guantánamo detention center some notable jurists from other national jurisdictions began to publicly refer to this facility as a “legal black hole” (Lord Steyn 2004: 1). Due to the complete absence of applicable law, Guantánamo became a real diplomatic problem for the administration. If we understand “diplomacy in terms of international legal justification,” it is easy to understand why (Hurd 2011: 581).
Because the administration leaned heavily on international law for framing its policies, a broader view is particularly important in the US where the internal assessments over international obligations are often seen, rightly or wrongly, through its constitutional structure (see, for example, Bianchi 2004b). This founding document divides the powers of government into three branches, and the result has many times been a passing along of the state’s international legal duties with each branch maintaining a plausible lack of responsibility. More recently, a manner in which national courts have dealt with this similar difficulty is by employing a “judicial ladder of review” meant to prompt an interbranch dialogue with the court playing the role of moderator. This chapter will analyze a series of cases that came before the Supreme Court of the US (Rasul, Hamdan, and Boumediene) relating to pertinent international norms in the “war on terror,” and which can simultaneously be found in domestic and constitutional law. Because certain fundamental rules are codified across different types of law, courts have found a novel way of late to provide protections for individuals across borders and regardless of citizenship by moderating such an institutional dialogue.
Through this investigation, we will see that the US Supreme Court indeed prompted an interbranch colloquy with the executive and legislature in an attempt to affect the final legal policies of the nation. While the other branches of government implemented policies and passed legislation that poorly interpreted the applicable law, the highest national court methodically employed this novel judicial tool and took the historic step of eschewing the traditional deference shown by courts in times of armed conflict. In so doing, the Supreme Court was measured, patient, and resolute in its push back against the effective removal of judicial review for those held in detention at Guantánamo in the “war on terror.” Ultimately, this series of formal legal rulings from the highest court in the land reflected a diminished, and perhaps even played a role in further eroding, legitimacy for the policy and the authority that employed it.
By exploring the series of Supreme Court decisions between 2004 and 2008 together, rather than individually, a much fuller picture will be provided of how rights found in various categories of law, including international norms, played a role in the dialogue between the various branches of government. It was not too long ago that legal analysts pointed to a reticence of national courts to apply international law in the domestic setting so as to avoid any clash with the executive and thus to afford latitude in foreign affairs (see Benvenisti 1993). However, more recently national courts have shown a growing propensity for a cross-fertilization of sources and jurisprudence, face-to-face meetings of judges in seminars, and increased citation of international law in their judgments.
Of course, this judicial globalization of sorts has not been a strongly identifiable vein in the US Supreme Court’s work. Nevertheless, one can see its influence in a passionate debate on the subject of the recourse to foreign and international law in another recent decision discussed below. Through an analysis of a series of more recent Supreme Court decisions dealing with the “war on terror” it will become clear that there has been a discernable tack in the direction of this global judicial trend. This is certainly not to say that the court has warmly embraced a global judicial community and has taken up a place at this table. Rather, it is to demonstrate that a fundamental international norm in play during counterterrorism efforts has indeed been consistently interpreted to be applicable through the use of various judicial tools, thus shining a light on the US Supreme Court’s current views of, and struggles over, international law.
Traditionally, there has been great deference granted to the executive branch by national courts in times of conflict (see Benvenisti 2004: 309–315; Scobbie 2008).2 Yet, in the current conflict, something different occurred when cases relating to the administration’s legal reasoning over detention and judicial review came before the US Supreme Court. Starting in 2004, the court began to push back against the Bush administration by asserting its own institutional competence in the Rasul v. Bush decision, on domestic statutory grounds, to hear habeas corpus challenges to the detention of foreign nationals captured abroad in connection with hostilities. In this same term, eight out of nine justices held in Hamdi v. Rumsfeld that the executive branch did not have the authority to indefinitely hold a US citizen on national territory without affording the rights of due process enforceable through habeas corpus, though no single opinion commanded a majority. Under quite different reasoning by the justices, the court roundly rejected the administration’s contention that it possessed a wide authority to detain persons under its constitutional commander-in-chief powers.
Looking at the positioning of the Supreme Court after the term ended in 2004, it would certainly be difficult to conclude that it was acting as any type of protectorate of human rights or international humanitarian law. While the decisions indeed treated norms that exist in international law, but explicitly using domestic statutory law, they were limited and left a wide margin of flexibility to the other two branches of government to alter its course without insuring an adherence to international obligations by the state. The court had simply examined and ruled on whether the executive had been given, either through the Constitution or through statute, the institutional competence to act as it had in the specific circumstances.
However, if we take into account the continued trajectory of case law before the Supreme Court dealing with detention in the “war on terror,” it is possible to discern what has been called an “emerging judicial theory” in a conceivably globally coordinated move. International jurist Eyal Benvenisti has theorized a “judicial ladder of review” (2008b) which can be distinguished and charted in the recent rulings of national courts in various jurisdictions. The author briefly sketches initial steps of the Guantánamo decisions in the US concerning detention and judicial review and put forward his theory before the Boumediene case was decided in June 2008. This framework of a five-step ladder is enormously useful for explaining the progression of cases dealing with counterterrorism that have come before the US Supreme Court. As we will see, the cases are best understood by discussing them together as a series of jurisprudence rather than as isolated cases. Therefore, this theoretical structure will frame our analysis so as to delve deeper into the ascension of review that the judiciary climbed in its moderating of a dialogue with the other branches of government.
At this point it is useful to provide an outline of Benvenisti’s “judicial ladder of review” and to exhibit how it allows the court the ability to moderate an interbranch dialogue. This framework is based on the proposition that the judiciary prefers to affect final policy with a low profile and with as little intrusion as possible. To do so, it aims to engage the legislature as a potential ally in the task of containing the exercise of authority by the executive. Yet, if it is unable to manifest a partner to share the burden, the court holds the option of ascending the ladder alone. The intent is for the judicial branch to encroach upon the executive’s authority as little as possible during a time of conflict, and thus it tailors its responses to the political circumstances and opts for a more deliberative process involving all three branches. However, it should not be overlooked that it is the judiciary that holds the tools to manage this process and thus chooses how and when to ratchet up or down the ladder according to its own assessment.
The five rungs of the “judicial ladder of review” are constructed as follows:
1 The least controversial technique is for the judiciary to refer an action back to the executive for reconsideration.
2 The next rung of the ladder is to address domestic statutes so as to call for legislative clarification of the executive’s authority to act.
3 Subsequently, the judiciary may refer to substantive limitations found in international treaty obligations (one of the more interesting facets of this ladder, because it was not that long ago that courts shied away from its reference) thus constraining executive and legislative discretion.
4 If the bench is still not satisfied with the outcome, it may invoke constitutional restrictions on specific parts of a legislation but allow for re-legislation.
5 Finally, and ultimately, the court may well ascend to the height of this ladder and rule a measure utterly infringing upon constitutional safeguards and thus beyond the scope of authority of either branch.
As this chapter is to be a view of legitimacy through the lens of legality, we will analyze the progression of engagement by the US Supreme Court with the other branches of government over executive detention without judicial review. Section II of this chapter will put the US Supreme Court’s current international engagement into a brief historical context and will then lay out the many different questions of international legality, from the perspective of both humanitarian and human rights law, raised by holding persons without access to any sort of judicial review. Section III investigates the Rasul decision and looks at the manner in which a unique familiarity with previous case law gave one Supreme Court justice an intimate knowledge of the controlling jurisprudence that ultimately had an important impact upon the judgment. Next, Section IV will investigate the court’s direct use of humanitarian law in the Hamdan decision and its distinctive interpretation of Common Article 3 to rule on the applicability of a portion of the Geneva Conventions to the “war on terror.” Section V will assess the Boumediene decision and discuss it as a human rights’ advancement in substance, even if the decision was based on constitutional law. At the same time, it will address the lamentable missed opportunity for creating a more harmonious concert between constitutional and human rights law. Section VI will then look into how the various branches have dealt with the question of legitimate detention during the Obama administration’s first term in office while the Supreme Court has opted to remain on the sidelines. Lastly, Section VII will conclude with the relevance of detention under a new strategy and what diplomatic implications this portends. As a result, we will arrive at a sharpened view of the issues of legality, with the policy of detention repeatedly declared outside of the law, and thus having a direct impact upon legitimacy.
II The US and international law
In this section, we will illuminate the competing judicial philosophies within the Supreme Court on the status of international and foreign law in the US. Courts have long taken the view that their interpretation of international obligations found in treaties must be seen through the Constitution. What this has often meant is that it has been possible to pass the responsibility for upholding international obligations between the branches of government because of their divided functions, or in this case out of the hands of the judiciary. Next we will present an overview of the applicable international law at stake when holding individuals without judicial review at a US military facility in Guantánamo Bay, Cuba.
a Transnational judicial dialogue and the US Supreme Court
Recently, there has been increased scholarship and attention to the growing phenomenon of national courts engaging in what has been likened to a judicial globalization (see, for example, Benvenisti 2008a; Jackson 2004; McCrudden 2000; Slaughter 2003, 2004: 65–103). That is to say, judges from different national jurisdictions are speaking with one another and exchanging judicial views, participating in seminars and judicial organizations together, and citing each other’s work in their own opinions. This growing tendency is not limited to transnational discourse; it also includes deepening interactions with regional and international counterparts. Constitutional courts the world over have also taken to citing ECtHR decisions, regardless of whether they are themselves a part of its jurisdiction. As another example, the International Criminal Court (ICC) and the NAFTA treaty are built on the premise that there will be a direct relation between national and international tribunals. A very interesting and useful way of conceptualizing this transnational judicial dialogue has been put forward by Anne-Marie Slaughter. She suggests that we can best understand these connections spanning national borders and oceans as a something similar to the globe hoisted by Atlas at Rockefeller Center, or a web of intersecting and expanding networks. The image of solid and real, yet not total, connections between all parts of the globe provides an effective visual for grasping nascent international—and, in this case, judicial—connections that demonstrate some current attempts at solving problems which cannot be resolved by individual and entirely autonomous nations (Slaughter 2004: 1–35).
Expanding on what is expressed in the epigraph to this chapter, over a decade and a half ago former Justice of the Supreme Court of Canada, Claire L’Heureux-Dubé, wrote about her view of the “globalization of the judicial world” and addressed the manner in which the highest court in the US fit into this mushrooming phenomenon. The observation from her advantaged perspective was that, “[m]ore and more courts […] are looking to the judgments of other jurisdictions, particularly when making decisions on human rights issues” (Heureux-Dubé 1998: 16). While there have historically been particular courts that served as hubs, particularly during the colonial era, this hierarchy has now shifted into a different form. Justice Heureux-Dubé wrote “as courts look all over the world for sources of authority, the process of international influence has changed from reception to dialogue” (1998: 17; original emphasis). Acknowledging the difficulty of a scientific assessment, she believed that the US Supreme Court was having a declining impact upon this international dialogue between jurisdictions.
The possible benefits of comparing constitutional and statutory protection, along with how international legal obligations play a role in individual jurisdictions, through such judicial dialogue are numerous. It offers forthright discussion of the hurdles to safeguarding shared concepts that exist in many constitutions of the world (in somewhat varied circumstances), such as dignity, freedom, and equality. Through such evaluation with foreign counterparts, judges can gain a sharpened insight into their own systems or provisions as to why they might already work reasonably well in certain areas or need improvement in others. Comparative study can also make up for the long experience of constitutionalism that only some countries possess. On the matter of potential benefits, we can also look to the words of an unexpected source: former Chief Justice Rehnquist of the US Supreme Court. He explained that “the real value of [these] reciprocal visits is in establishing face-to-face contact with judges in another country who, despite the differences between our judicial systems, face many of the same problems faced by federal judges in the United States” (2002).
Additionally, it should be pointed out that such dialogue does not portend a homogenous result. Thus, another benefit from such structured and unstructured interaction is also that of “informed divergence” (Slaughter 2004: 181–183) in which judges consciously choose a different route than their colleagues. This can be due to the particular circumstances of their jurisdiction or to the case directly before them. Thus, as a result of such dialogue, they may choose to put forward their reasoned choice of departure.
While the US Supreme Court has been identified as one court that in some ways operates outside this burgeoning network, partially due to a sense of obligation to democratic autonomy, it cannot be said that the entire court persists upon such a path. Some commentators have described the opinion of the court on this issue as being split between two philosophical branches of thought. The appointments to the court of Chief Justice Roberts and Justice Alito have been characterized as solidifying an inward-looking alliance on constitutional interpretation with Justice Thomas and Justice Scalia. Meanwhile, Justice Kennedy now finds himself to be a swing vote on certain issues and has shown willingness to consider judgments from other jurisdictions as persuasive. Typifying the inclination of those opposed to consultation with outside sources for interpretation of the US Constitution are the words of Justice Thomas in a concurrence denying certiorari in 2002 of the Foster v. Florida case: “this court’s […] jurisprudence should not impose foreign moods, fads or fashions on Americans” (p. 990).
However, the court does indeed participate in formal exchanges with its counterpart across the Atlantic, the European Court of Justice, and has visited its equivalents in Mexico, Germany, France, England, and India. Additionally, there are statements that can be pointed out by members of the court, from the other side of the philosophical divide, which indicate a conviction that examining foreign sources of law, along with international law, will serve to benefit the depth of their own decision-making and opinions.
In 2003, Justice Breyer addressed the American Society of International Law and spoke to the historical views of justices of the Supreme Court. He said that many on the court hold “a view that now extends beyond public international law to embrace foreign law and legal institutions as well” (Breyer 2003). Justice Ginsburg, even more recently, expounded her view that,
if US experience and decisions can be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so we can learn from others including Canada, South Africa, and most recently the UK – now engaged in measuring ordinary laws and executive actions against charters securing basic rights.
(Ginsburg 2006)
One case in which we can see very clearly these separate factions in direct duel is in the 2005 opinions of Roper v. Simmons. The case dealt with a defendant who had committed murder when he was seventeen years old and was then sentenced to death after he had turned eighteen. The Court held, on various grounds, that the Eighth and Fourteenth Amendments forbade the imposition of death on offenders who were under the age of eighteen at the time the crime was committed. After laying out a broad reasoning, Justice Kennedy in his majority opinion states that this decision
finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility.
(p. 575)
In what has been called the “most ambitious use of international sources to date” (Waters 2007: 633), Justice Kennedy went on to cite the International Convention on Civil and Political Rights (ICCPR), along with other regional human rights treaties, to lend persuasive authority to his opinion.
In dissent, Justice Scalia disparaged the majority opinion with his well-known sharp pen and directed some of his most caustic criticism at the use of international sources. To raise doubts over said international consensus, he writes, “the Court is quite willing to believe that every foreign nation—of whatever tyrannical political makeup and with however subservient or incompetent a court system—in fact adheres to a rule of no death penalty for offenders under 18” (p. 623; original emphasis). Finally, Justice Scalia’s attack on the use of what he calls “foreign sources” concludes on a familiar questioning of what reasoning or authority is to be regarded as the most true to the US Constitution. Taking issue with the genuineness of the argument supporting human rights found in the majority opinion, Justice Scalia claims that
the Court’s statement flatly misdescribes what is going on here. Foreign sources are cited today, not to underscore our “fidelity” to the Constitution, our “pride in its origins,” and “our own [American] heritage.” To the contrary, they are cited to set aside the centuries-old American practice … of letting a jury of 12 citizens decide whether … youth should be the basis for withholding the death penalty.
(p. 628; original emphasis)
In this last citation demonstrating some of the current internal debate, we find what has become central to the framework in the US for viewing international law: the US Constitution. If there is one line of reasoning that can be followed over the years it is that of using the US constitutional structure to interpret international legal obligations by the national courts. Whether it is the separation-of-powers doctrine, federalism, or deference to the democratically elected political branches, the manner in which treaty responsibilities are interpreted by US courts is largely shaped by this founding document. This again holds true for the current debates over what role international law and the law from other jurisdictions should play in constitutional interpretation.
This is the context in which the US Supreme Court found itself as the series of counterterrorism cases relating to detention and judicial review in the “war on terror” came before it between 2004 and 2008.
b International norms: a framework for dialogue
On January 16, 2002, detainees captured in Afghanistan began to arrive at the US military facility in Guantánamo Bay on the island of Cuba. The territory had been acquired through the Platt Amendment in 1903 while US forces were still occupying the island after the Spanish–American War, and this bilateral agreement gave the US complete jurisdiction while sovereignty remained in the hands of Cuba (Maris 1967: 261). This particular facility appears to have been chosen because neither US domestic jurisdiction nor pertinent international laws were thought by administration lawyers to fully apply to noncitizens detained on foreign land. Indeed, this stance was taken by government lawyers before the Supreme Court, and internal documents have been published asserting this legal position even prior to the decision to open the detention facility (see Philbin and Yoo 2001).
The stark and extreme legal position of the Deputy Assistant Attorney General John Yoo on the US Constitution and international law was outlined in the previous chapter of this work. It was only two weeks after the terrorist attacks that Yoo wrote his first legal memo relating to the “war on terror,” stating that Congress cannot pass legislation to limit the president’s power in wartime. What is more noteworthy in our discussion here, however, was the executive’s vision of the role of the judiciary in this war. Just two months after the attacks, the President signed the military order “Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism.” In it, the bold assertions of the executive’s unitary control over its conduct of the “war on terror” were plain, in particular when it came to any type of judicial review. The document read,
the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf, in (i) any court of the United States, or any State thereof (ii) any court of any foreign nation, or (iii) any international tribunal.
(Bush 2001a: 28)
It was with this legal stance of a complete exclusion of the judiciary that the Bush administration launched its “war on terror” and began detaining prisoners at Guantánamo. Yet there are a host of legal questions that need to be answered in order to assess the administration’s compliance with the applicable humanitarian law in the four Geneva Conventions: Is the armed conflict international, or noninternational?3 Are the detainees in Guantánamo entitled to “POW” status?4 Were there any legal protections to be found at all in the Geneva Conventions that applied to members of the Taliban and Al-Qaeda?5 Does there exist an “unlawful combatant” status that puts a prisoner outside of the framework of the Third and Fourth Geneva Conventions?6 What happens if doubt should arise as to the status of a detainee (GC-III, Article 5)?7 These are complex legal questions, and each is critical for resolving the issue of whether the Bush administration was exercising its power legally under the laws of war.
The manner in which the executive branch meant to settle these issues is found in a two-page document signed by President Bush (2002a) on February 7, 2002, and the uncomplicated reasoning is fleshed out in the above endnotes (3–7). Ultimately, this memo asserted the presidential finding that neither members of the Taliban nor of Al-Qaeda would be covered by any laws at all.
However, neither can it be overlooked that there are also human rights laws that remain applicable in armed conflict, even if the administration claimed otherwise. The clauses for derogation give human rights conventions the ability, not to mention the authority, to flex and bend with circumstances. This even includes threats as grave as those to the life of a nation. This is an important reason why these two branches of law have been persistently and explicitly depicted as complementary and mutually reinforcing.8 As well, this explains the various efforts that have been made to establish the manner in which the rules from both branches converge on a minimum common standard that is applicable at all times.9
Of direct pertinence here is the human rights standard prohibiting “arbitrary” arrest or detention, which can be found in nearly all the major human rights conventions.10 Yet this is a relative right. This means that whether the detention of a suspected terrorist is “arbitrary” or not must be assessed in context—that is, the detainee’s right to liberty is weighed against the security of society and the interests of a government in preserving law and order. To perform this balancing, human rights law requires that a person who has been deprived of his or her liberty has the possibility of judicial review. As Article 9(4) of the ICCPR affirms,
[a]nyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order release if the detention is not lawful.
It should also be noted that the right to judicial review is implied to be a derogable right within the text of the ICCPR. In other words, in exceptional circumstances a state is allowed to temporarily adjust its obligations under the treaty. However, there are stringent constraints upon the conditions under which derogation may take place. Not only must it be a public emergency that “threatens the life of the nation” which has been “officially proclaimed,” but the denial of a judicial review must be “strictly required by the exigencies of the situation” (Article 4[1]). Nonetheless, the Human Rights Committee (HRC), created by the Covenant itself, has spoken expressly on the specific issue before us and has stated that freedom from arbitrary detention is a peremptory norm. Thus, “the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant” (General Comment 29, para. 16).
This is just a glimpse of the mountain of international legal constraints that faced the executive branch as it plowed forward with its interpretations of the applicable law in this cross-border conflict. However, as we will see, the Supreme Court did not primarily deal with these questions through the prism of international law, other than in the Hamdan decision of 2006 which read the incorporation of the laws of war into domestic law. Instead, the court found the fundamental principle of applicable law affording basic judicial protection, or a judicial review of detention, to be present on both domestic and constitutional grounds allowing it to chart its own route based on the responses of the other branches of government.
III The Rasul decision: stimulating the dialogue
Shortly after the opening of the Guantánamo facility, the Center for Constitutional Rights filed cases within the US national court system in an attempt to provide a judicial review to the detained foreigners in Cuba through habeas corpus petitions. The detainees held there were not informed of the reason for their detention and had no right to trial; nor were they provided with any legal counsel. In the Supreme Court term of 2003–2004, two cases had worked their way up through the system to come before the highest court and were consolidated under the name Rasul v. Bush. In these cases, the petitioners claimed that they had never been combatants against the US, nor had they engaged in any terrorist acts. The lower courts found that they did not possess jurisdiction to hear the habeas petitions and dismissed the cases. Thus, as aliens outside of US sovereign territory, they could not invoke the right to habeas corpus. Additionally, handed down on the same day as Rasul, there was a ruling on a case concerning a US citizen accused of fighting against the coalition forces in Afghanistan. Hamdi v. Rumsfeld was also an assertion of the court’s jurisdiction to review executive action regarding detention, and thus both cases represented its initial ascension of the “judicial ladder of review.”
This was the first chance that the US Supreme Court had to consider any of the counterterrorism policies instituted in the wake of 9/11. Congress passed the omnibus legislation known as the US PATRIOT Act within six weeks of the attacks, and the President launched wars into Afghanistan and Iraq well before the Supreme Court was asked to weigh in on whether judicial review is legally afforded to those detained in this “global war.” So, if we think about the differing controlling mandates of the powers in a modern democracy, we begin to perceive a wedge being fashioned here between the separate branches of government.
The majority opinion in Rasul v. Bush was written by Justice John Paul Stevens, and he opens his judgment by presenting a brief account of the terrorist attacks on the US that led to the congressional authorization to use force in Afghanistan. These hostilities against the Taliban and Al-Qaeda generated detainees, including the petitioners, who were then moved to the Guantánamo facility. Pertinent to the decision was the legal circumstance of the naval base on the island. The court observed that the lease that was signed in the aftermath of the Spanish–American war left ultimate sovereignty with Cuba but granted that the US would exercise complete jurisdiction and control. As such, the question before the court was to determine whether there was legal reason to extend habeas protection to noncitizens confined in an area where the country exercised plenary and exclusive jurisdiction but not ultimate sovereignty.
The lower courts had relied entirely upon the 1950 Johnson v. Eisentrager decision of the Supreme Court, and even the briefs put forward by the petitioners and respondent primarily focused upon this particular case law in an assumption that it was the controlling case. The Eisentrager case concerned twenty-one Germans who were captured in China at the end of World War II, convicted of war crimes by the US military for continuing to fight after the surrender of their country, and then repatriated to serve out their sentences under American authority on a US military facility. They then petitioned for habeas corpus before the US courts claiming that the circumstances of their detention had violated the US Constitution. The Supreme Court held that the District Court for the District of Columbia lacked jurisdiction to hear the petition because, among other things, “[n]othing in the text of the Constitution extends such a right,” and
[w]e are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction.
(p. 768)
Plainly, there was good reason to believe that this would be the controlling jurisprudence. Like the cases before the court, Eisentrager dealt with foreign citizens held on a US military base seeking judicial review. This certainly seemed a high hurdle to clear for the petitioners.
In a notable twist, the position taken by the court in this significant decision of 2004 was, at least in part, due to the fact that one of its members had an intimate knowledge of, and noteworthy role in, a judgment that was handed down over a half-century earlier (Thai 2006). The conventional understanding of the relevant precedents was that for the court to rule in favor of the petitioners, it would need to overrule or somehow distinguish the Eisentrager decision from the cases upon which the court was now deciding. A similar case of wartime jurisprudence had certainly not come before the court in the previous half-century. However, the majority opinion held in Rasul that, in fact, the statutory understanding implied in Eisentrager had already been overruled. To do so, the decision relied upon a relatively obscure dissent in a 1948 case that had been classified as dealing with venue, rather than jurisdiction. The case upon which the Rasul decision would pivot was Ahrens v. Clark, for which critical parts of the dissenting opinion had been drafted by a young law clerk named John Paul Stevens.
The Ahrens case arrived at the high court in 1947 and dealt with the detention of over 100 Germans at Ellis Island who were determined to be a danger to the US due to the war in progress with their country. They were scheduled to be deported, yet the petitioners claim on the merits of their case was principally based on the fact that this order was actually made after the conclusion of hostilities had occurred.
However, the portion of the case that concerns us here relates to the fact that the petitioners had brought the case before the District Court for the District of Columbia (that of the Attorney General) rather than the court found in the jurisdiction of their confinement (the Southern District of New York). Ultimately, the majority opinion ruled that the District Court did not have jurisdiction and affirmed the lower court’s dismissal because “[i]t is not sufficient, in our view, that the jailer or custodian alone be found in the jurisdiction” (Ahrens [1948], p. 190). In a footnote, it also set aside the human rights question of “what process, if any, a person confined in an area not subject to the jurisdiction of any district court may employ to assert federal rights” (Ahrens [1948], p. 193, note 4).
It was Stevens, as a law clerk, who was asked by Justice Rutledge to prepare a first draft for the dissent in the Ahrens case, and, as such, he came to have an intimate knowledge of the issues at stake in the case. In his draft dissent, Stevens looked at the two issues of proper respondent and territorial jurisdiction of the prisoner to explain that the Congress did not seem to have in mind the irregular circumstance in which the two were not found in the same jurisdiction (Thai 2006: 507–510). Also in this text by the law clerk was a reading that the majority’s opinion ended up deciding future cases in which a detainee was not in the specific territorial jurisdiction of any court. This reading also made it into the final dissenting opinion written by Justice Rutledge, and disagreement within the court over this question (directly relating to the human right of a judicial review available for any detainee regardless of the imprisonment location) was addressed as “[j]urisdictionally speaking, it is, or should be, enough that the respondent named has the power or ability to produce the body when so directed by the court” (Ahrens [1948], p. 199). Yet this was, indeed, only a dissenting opinion without the force of law. Thus, Stevens had a hand in tilting the reasoning for the dissent in this particular direction and left his own mark on a case that he would pick up over a half-century later in Rasul.
It is possible to quickly discern the impact that a familiarity with this particular jurisprudence allowed Justice Stevens. In the majority opinion penned by Justice Stevens himself, it was pointed out that the petitioners in Eisentrager filed their suit only two months after the Ahrens decision was handed down. Thus, the reasoning put forward was that Eisentrager was decided in a legal context in which Ahrens was well understood to be in place. Due to this legal environment, Justice Stevens argued that Eisentrager was in fact based on the question of a detainee’s constitutional right to habeas corpus rather than a statutory right to habeas review, so as to distinguish it from Ahrens (Rasul v. Bush [2004], pp. 476–479). By reading Eisentrager in this way, it no longer became the controlling jurisprudence since the Rasul case was looking only at the statutory right to habeas corpus. Therefore, the Supreme Court’s decision in Eisentrager was found to be an overruling of the constitutional right (previously found in the Court of Appeals) and not related to the statutory interpretation under discussion.
To link this novel interpretation of Eisentrager with the case before the court, the majority opinion turned to the case of Braden v. 30th Judicial Circuit Court of Kentucky (which in fact made specific mention of the dissent in Ahrens by Justice Rutledge). Relying upon this particular case allowed Justice Stevens to demonstrate that in 1973 the statutory understanding of habeas had already been reformulated so that “[t]he writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody” (Braden [1973], pp. 494–495). The Rasul opinion was careful to point out the reasoning with which Braden arrived at its conclusion of overruling the Ahrens decision. That is to say, the proceeding developments in the congressional and judicial treatment of the habeas statute, after Ahrens, were of central importance to the court in Braden. This led to the finding that the court, on statutory grounds, could “no longer view that decision [Ahrens] as establishing an inflexible jurisdictional rule” (Braden [1973], pp. 499–500). As such, Justice Stevens was able to deftly realign the precedents so that Eisentrager was no longer the controlling jurisprudence because Braden became understood as the precedent that had already overruled the majority opinion referring to the domestic statute. Instead, largely due to an intimate familiarity with the court’s jurisprudence on this particular point, the dissenting opinion in Ahrens became the controlling precedent.