Several people, including Juan and Mike Rappaport (The Right Coast), suggested that I needn’t worry about the litigation as military tactic by 50,000 detainees scenario, because Congress could still statutorily strip these detainees of the rights to petition for habeas. This would not be a suspension of the constitutional right to habeas corpus (which isn’t allowed except in cases of invasion or rebellion), but rather a denial of habeas to people — enemy aliens detained outside the U.S. — who have only a statutory habeas corpus right, not a constitutional one.
How would this work? Well, remember that all of us can have three kinds of rights: (1) Constitutional rights, which are secured by the Constitution itself, and which can’t be taken away by Congress (except when the Constitution specifically authorizes it, as with suspension of habeas during rebellion or invasion). (2) Statutory rights, which are granted (I speak here of legal rights, not moral rights) by statute, and which can be taken away by statute. (3) Common-law rights, which flow from judicial decisions, but which can be taken away by statute.
To give one non-habeas example, if the police illegally wiretap us, we might have a common-law claim of invasion of privacy against the police officer, a statutory claim under laws that restrict wiretaps, and a constitutional claim for violation of the Fourth Amendment. Our statutory and common-law rights may actually be broader than our constitutional rights (and, as to the wiretaps, the statutory rights are indeed broader). This might mean that when we sue based on the wiretap, the court might not even have to decide the scope of our constitutional rights, if it’s clear that our statutory rights were violated. But the statutory and common-law rights may be repealed by legislative action; the constitutional rights can’t be.
In Johnson v. Eisentrager (1950), the Supreme Court held that German soldiers caught by the Americans in China, and detained in Germany, didn’t have either a statutory or constitutional right to habeas corpus. The statutory issue took little space; the Court concluded that the statute authorizing habeas petitions basically only gave jurisdiction to judges in the district where the person was being detained. This was an extension of Ahrens v. Clark (1948), which held the same, but specifically reserved judgment on whether this rule applied when the person was detained outside any judicial district (such as on a military base in Germany); Eisentrager essentially concluded that the rule did apply there, and there was no statutory right to habeas.
The Court then went on to conclude that the enemy detainees didn’t have constitutional rights to habeas (or the rights of the Bill of Rights), either.
In the Guantanamo case (Rasul v. Bush), the Court said that — because of more recent developments in the Court’s interpretation of the habeas statute — the Guantanamo detainees did have statutory rights to habeas. It therefore didn’t have to explicitly decide whether they had constitutional rights to habeas. So it’s possible that Congress could, if such habeas petitions prove too burdensome, limit the habeas statute to exclude them. That would then require the Court to answer the question whether such enemy detainees do indeed have constitutional habeas rights, and not just statutory ones.
That’s a plausible argument — but here’s why I’m skeptical, and why I think that the Court’s ruling may lead the Justices (and lower courts) to actually conclude, in my view wrongly and dangerously, that enemy detainees do have the constitutional right to habeas corpus review, and thus can continue to use litigation as a military tactic.
1. To begin with, just to make clear, the Court did not preclude the possibility of such a constitutional right. It didn’t hold there was such a constitutional right (it only said there was a statutory right), but it didn’t hold the opposite.
2. More importantly, the Court went out of its way to cast doubt on the broad applicability of Eisentrager (which, recall, is the case that did reject a constitutional right). For its purely statutory holding, the Court could have limited its treatment of Eisentrager to the purely statutory point: Recent cases have led the Court to interpret the statutory habeas provision more broadly than it was interpreted during the Eisentrager era (that’s the argument captured in the Court’s statement that “Because Braden overruled the statutory predicate to Eisentrager’s holding, Eisentrager plainly does not preclude the exercise of [habeas] jurisdiction over petitioners’ claims”); and since Eisentrager talked very little about statutory habeas, there’s no reason to discuss Eisentrager further.
But the Justices didn’t just do that; they began by distinguishing Eisentrager on the facts:
In reversing that determination [of a constitutional right to habeas], this Court summarized the six critical facts in the case [Eisentrager]:
“We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.”
On this set of facts, the Court concluded, “no right to the writ of habeas corpus appears.”
Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.
Only then did the Rasul majority go on to say “Not only are petitioners differently situated from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners’ constitutional entitlement to habeas corpus. The Court had far less to say on the question of the petitioners’ statutory entitlement to habeas review. Its only statement on the subject was a passing reference to the absence of statutory authorization: ‘Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.'” And then the Court continued with its statutory analysis.
This strongly suggests to me that the Court is trying to limit Eisentrager‘s constitutional holding to a situation where some number (maybe all, maybe most, maybe some) of the Eisentrager factors are met. And if that’s so, then there might indeed be a constitutional right to habeas in my hypothetical.
3. Also, while the Court is saying that its holding is statutory, actually its holding is much more common-law-like. Habeas law has generally been developed by judges, with relatively little participation by Congress (though in recent years the Congress has cut back in some measure on repeat habeas claims by criminals). The broadening of statutory habeas that the Rasul Court focused on was done not by Congress, but by the Court itself. So the Court may formally be interpreting the statute, but it is actually making a sort of statutory common law that has little to do with specific Congressional commands.
This isn’t itself illegitimate, it’s part of our habeas tradition, and the Court has done this in many other areas (such as antitrust law, or, historically, copyright fair use law, or evidentiary privilege law under the Federal Rules of Evidence). And such common-law decisionmaking might be supersedable by contrary Congressional statutes.
But it’s important to realize that here the Court is exercising its own policy judgment, not just saying “Congress said we should do this, so we’ll do this.” The Rasul decision thus represents the Court’s own views of sound habeas policy — and, coupled with what I said above in item 2, it suggests that the majority might well apply the same views to the question of what habeas relief is constitutionally required.
Recall the key arguments made by the Court in Eisentrager as support (not the only support, since the Court also stressed history and other factors, but as a major support) for its decision (some paragraph breaks added):
To grant the writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence.
The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals.
It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.
Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands. The right of judicial refuge from military action, which it is proposed to bestow on the enemy, can purchase no equivalent for benefit of our citizen soldiers. Except in England, whose law appears to be in harmony with the views we have expressed, and other English-speaking peoples in whose practice nothing has been cited to the contrary, the writ of habeas corpus is generally unknown. . . .
That was the heart of Eisentrager‘s constitutional argument, but it is an equally strong prudential argument against recognizing, in common-law fashion, a hitherto unrecognized statutory habeas right. But the Rasul majority obviously didn’t buy this. This suggests that they won’t buy the Eisentrager constitutional argument in a constitutional habeas case, either — and that the logic of their case might thus suffice to overrule or at least limit to its facts (again, see item 2 above) Eisentrager‘s constitutional holding.
So these are my attempts to respond to the very thoughtful points raised by Juan and Mike (see links at the start of this post). I recognize that indeed the Court might eventually hold that the enemy detainees in my hypo don’t have a constitutional right to habeas, and that Congress can thus deny them habeas review if it thinks that such review would be too burdensome. I also recognize that some may argue that such review might not be that burdensome (if the Court concludes that lower courts can summarily deny habeas if the military provides even very slightly, purely military process to those who claim they’re wrongfully detained). And I recognize that some may argue that, no matter how burdensome the review is — how effective mass habeas petitioning may be as an enemy litigation tactic — that’s a price that we have to pay, to protect the rights of the alleged enemy combatants.
But I think that, largely for the reasons that Eisentrager gives (though with less focus on transportation, given modern technology), Rasul does indeed risk substantially hampering our military effort, and strengthening our future enemies’ military effort. And I’m not at all sure that Congress can avoid this burden simply by limiting statutory habeas for enemy detainees to the constitutionally required minimum.
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