My colleague Kal Raustiala writes:
Saw your blog query:
[W]hat if every criminal defendant in the US refused to plead out and demanded a trial[?] Is there a constitutional difference between this scenario and your “many prisoners in a war situation” scenario? Both would wildly overload the system. Is there a reason you see for permitting trials in the former case (even though aggregation would collapse the system) but not permitting habeas in the latter (same)?
Another correspondent asked something similar.
I think this does shed light on a key question here. As I understand Kal’s argument, presumably the U.S. would have to invest the time, manpower, and money — including the time of soldiers who would be distracted from their military duties by having to provide information for the habeas hearings — for tens of thousands of detainees taken captive in some future large military conflict. That’s the price of justice, the theory would go; we need to pay it.
And that’s true if the obligations imposed by the Constitution apply equally, or even nearly equally, to (1) American citizens (or invitees of the American government) arrested for civilian crimes, and (2) foreigners captured on foreign battlefields and thought to be fighting in a war against America. (There are intermediate categories between the two, such as illegal aliens arrested in the U.S. for civilian crimes, who are generally given constitutional protection, U.S. citizens captured on foreign battles fighting against us, and so on, but for now let me stick to the polar extremes, which are actually quite common, and which are what this case is largely about.)
But I don’t think that’s so. Our Constitution has never been understood as making it so. Making it so would potentially hugely burden our ability to fight wars; and, no, I don’t think that protecting the interests of foreign soldiers who we think are enemy combatants justifies interpreting the Constitution otherwise.
The relevant Bill of Rights protections that we have come from the Anglo-American experience of civilian law enforcement. They do impose serious burdens on the government, but the fact that these burdens are acceptable for civilian law enforcement doesn’t mean that they are acceptable when fighting a war, and dealing with non-citizens who were captured outside the U.S. on foreign battlefields, and who are thought to have been trying to defeat us.
Johnson v. Eisentrager (1950), the leading precedent in this field, got it right, I believe:
If the Fifth Amendment confers its rights on all the world except Americans engaged in defending it [a reference to the fact that soldiers are generally governed by military justice, with no real recourse to civilian courts], the same must be true of the companion civil-rights Amendments, for none of them is limited by its express terms, territorially or as to persons. Such a construction would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and “werewolves” could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against “unreasonable” searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.
Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. None of the learned commentators on our Constitution has even hinted at it. . . .
As a matter of constitutional history and military need, enemy soldiers have long been treated by military justice and military detention, with virtually no intervention by civilian courts. It is a harsh system, as is the system of shooting and trying to kill them (with no trial, arrest warrant, or anything else) before they’re taken captive. But I don’t think the Constitution commands any other system.
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