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Tuesday, February 01, 2005

Judge David Sentelle: "National Security and the New Role of the Courts"

Live Blogging for Judge David Sentelle Event

Judge Sentelle (hereinafter JS) enters the room wearing an olive colored suit and a cowboy hat. Editorial comments to appear in italics.

Introduction by Federalist Society Grand Poobah Blaine Evanson. "We are excited and honored to have Judge Sentelle here to discuss National Security and the role of the Judiciary. Judge Sentelle graduated from North Carolina Law School, worked in private practice, in the state attorney general's office, and in various judicial positions." He presides over the committee appointing independent counsels. JS provides the standard caveat that he will not answer questions relating to live cases.

JS says he misses North Carolina, but when he misses it too much, he comes to New York, and then he starts missing Washington. Ha! And he didn't even have to put up with obnoxious Yankee fans.

JS is here to discuss the role of the judiciary in matters of national security and foreign affairs. The judge says there are too many pending questions to take anything other than purely academic positions on these issues. Please treat the quotes that follow liberally, and realize that means I just got tired of writing "JS said.".

"The executive and legislative branches claim substantial roles in national security. The judiciary has long had some role. Domestic security investigations depend on warrants issued by the court. Courts have passed on the existence of the state of war since the Adams administration. Question of whether we can be at war without a declaration was decided by the Marshall court in the affirmative long before the current controversies.

"Most often, though, the role of the judiciary is to defer to the other two branches. However, in June 2004, the Supreme Court issued 3 big decisions. Rumsfeld v. Padilla was of little independent interest. Hamdi and Rasul v. Bush, though, fundamentally changed the role of the court in national security matters. The latter is the more startling of the two cases and encompasses much of what is relevant to the future of the courts here. The talk today will focus on Rasul.

"The Supreme Court considered the narrow question of whether the U.S. Courts had jurisdiction to consider the incarceration of detainees in Guantanamo Bay. The Appellate Court decision affirmed a district court opinion on the petition for Habeas from next friends for Kuwaiti and Australian citizens. The district dismissed for lack of jurisdiction. This rested on the venerable precedent of Johnson v Eisentrager, which arose from WWII facts. Reliance on Eisentrager was reasonable and expected since that case was understood to state the law on the jurisdiction of the courts to issue writs for aliens detained outside of US Territory. Those litigants were Germans convicted in China for continuing hostilities against the U.S. after the surrender of Germany but before the surrender of Japan. These charges amounted to war crimes: Continuing hostilities against the U.S. after their country had surrendered.

"The defendants there had been tried and convicted in China. None of the defendants ever entered the US, or were ever held in the US. They asked for a writ of habeas corpus claiming violations of the US Constitution and the Geneva Convention. The petition was dismissed for lack of jurisdiction, citing Ahrens v Clark, a case from 1948. The court in Clark was construing the predecessor to the Habeas Corpus Statute (28 USC § 2241). Question in Clark was whether the jurisdictional statute granted jurisdiction over aliens not tried, convicted, or held in the district court's district. The Court of Appeals in Eisentrager felt that Clark did not speak to this issue directly, and overruled the district court decision saying that the case was governed by the Ahrens decision. They felt that common law habeas was a fundamental common law right. This right could not be suspended because of the Article I prohibition on suspension of habeas corpus outside of public rebellions. If Congress, then, could not effectuate by affirmative action a deprivation of a substantive right (through suspension), the Court held that Congress could not accomplish the same by omission (not enumerating a specific kind of habeas relief in a habeas statute). The Court ruled that since the district court had jurisdiction over the superior officers of the jailers, they had petitions over the habeas petitions.

"The Secretary of Defense became the named defendant and he sought review from the Supreme Court. Justice Jackson wrote a long reversal of the court of appeals, noting that no instance could be found where a court issued a writ of habeas corpus for an alien beyond the territory of the country. The circuit court's entitlement reasoning was illusory, and since there was no entitlement, there could be no deprivation. The same rights are not granted for enemy aliens that are available for citizens.

"Further, according to Justice Jackson, trials resulting from the power to issue habeas writs would hamper the war effort and bring aid and comfort to the enemy. These would hamper the capacity of US Commanders, since the same people a commander was charged with defeating could demand that he defend his decisions before courts at home.

"Resident aliens, the court declared, are entitled only to judicial proceedings to find they really are enemy aliens. If that turns out to be true, they are denied all habeas process.

"The high court noted that the district court did not even need to rely on Ahrens v Clark. That case only dealt with persons living in the United States. Eisentrager holds that foreign courts can try and condemn enemy aliens, and domestic courts can only try enemy alien status for enemies within the US, and cannot try ANYTHING for combatants held outside the U.S.

"Fast forward to Rasul. The U.S. Courts have jurisdiction to consider the legality indefinite executive detention of foreign enemies detained at Guantanamo Bay who claim to be innocent of wrongdoing. This leads to a remand to force the district court to consider the merits of petitioner's claim.

"The petitioners in Rasul were not from enemy countries. They were caught in Afhganistan and transported to Cuba, recognized as sovereign over the Guanatanamo camp over the lease period. Thus, the petitioners were not foreign nationals from enemy states, but they were captured and transported to a holding camp outside the US. All this sounded like Eisentrager to the district court and the court of appeals. Judge Randolph of the D.C. Circuit wrote for a unanimous panel, who thought the answer was obvious.

"At the Supreme Court level, the dissenters felt like the facts could not be distinguished from Eisentrager. Kennedy concurred for separate reasoning (discussed herein later).

"Justice Stevens wrote for Justices O'Connor, Souter, Ginsberg, and Breyer (All of whom your humble blogger has asked for a job). The majority's reasoning: They thought they were dealing with a narrow question. The Court dispensed with Eisentrager as precedent after citing six factors set out in Eisentrager leading to that Court's decision that no habeas review was available: 1) is the prisoner an enemy alien, 2) has the alien never resided in the US, 3) was the alien captured by the military, 4) was he tried and convicted outside of the US, 5) was he convicted for violations of the laws of war, 6) and was he at all times kept outside the US.

"In spite of these factors, though, which seemingly applied to Rasul and his friends, The majority in Rasul thought the Rasul petitioners differed from the Eisentrager detainees because the petitioners in Rasul were not nationals of a country at war with the US (of course, technically speaking, neither were the aliens in Eisentrager since Germany had surrendered).

"The Court then made a second, more controversial distinction: In the eyes of the Rasul majority, Eisentrager was dealing with the constitutional rights to habeas review as opposed to a statutory right which might be available now. In the view of the majority, the Ahrens majority created a statutory gap which the Eisentrager court filled with a right they deemed fundamental. By this logic, Eisentrager only dealt with the constitutional demands of habeas review, and thereafter found that the current habeas statute did not provide for relief. But, since that statutory construction was overruled by Braden v. 30th Judicial Circuit Court of Ky., the Court here was not bound by Eisentrager's interpretation of the habeas statute.

"Here's the explanation. The Rasul court treats the Ahrens analysis as being critical for Eisentrager, and critical here, even though Ahrens has since been overruled (by Braden). Rasul reasons that because Ahrens was overruled, and Eisentrager relied on Ahrens, Eisentrager no longer controlled the reading of the habeas statutes to deny jurisdiction to the courts.

"Stevens goes on to cite Lord Mansfield for the proposition that there is no doubt that the crown could give habeas relief for any case under the control of the crown. The court found that since there was no doubt that an American officer was the detention officer, the object of the petition was within the court's jurisdiction, thereby making habeas relief available.

"Justice Kennedy (who I also asked for a job) concurred, agreeing that habeas relief was available, though he felt like it was a narrower call. He felt as though the fact that Braden overruled Ahrens does not do much for the majority, and that the majority's reading of Eisentrager was tenuous (meaning, as locked in only by the current understanding of the habeas statute). In Justice Kennedy's view, Eisentrager noticed an ascending scale of rights based on status vis a vis enemy aliens. Citizens have the most rights. At the bottom of the scale, enemy combatants held outside the US might have some rights, though they would be minimal.

"Justice Kennedy entertained the idea that judicial review of detentions would give aid and comfort to the enemy. Justice Kennedy thinks there must be some realm where the judicial power cannot enter. The President's decisions as commander and chief, and the joint congressional and executive determinations guiding conduct are beyond judicial review.

"However, despite this citadel into which the judiciary cannot enter, Justice Kennedy feels the court should exercise jurisdiction on the Rasul facts, because these facts are distinguishable from Eisentrager. To him, Guantanamo Bay is a de facto US territory, far removed from hostilities. Secondly, he notes that the Guantanamo detainees are being held indefinitely, with no legal hearing to determine their status (as distinguished from the Eisentrager detainees).

"At various points during the litigation, though, the government spoke of using detentions for the length of the hostilities. This old measuring stick may not be useful, though, since we may not know when the conflict is over. Detentions here are not like detentions in previous wars. Detentions in enemy combatants in WWII were unbounded while the war was being fought, but there is a difference. The government here concedes that the current conflict is unlikely to end with a current cease fire or agreement. The detention here, then, is different than the detention we might expect in conventional wars.

"A brief look at the dissent: Justice Scalia thinks the case represents a change from the traditional view of habeas among federal judges. Justice Scalia (writing for Rehnquist, Thomas, and himself (though I would gladly write for any of them, if they would be so kind as to hire me)), dissents to the idea that Ahrens was overruled by Braden. To Justice Scalia, Braden stands only for the proposition that a writ of habeas corpus may be sought in a jurisdiction where he is legally (if not physically) confined if he is being charged in multiple jurisdictions for the same crime. If Ahrens is limited to this context, then the majority is the first group to overrule Ahrens, taking Eisentrager down with it.

"There is no precedent for the view that US jurisdiction extends to Guantanamo bay. Justice Scalia warns that to grant the writ to petitioners requires the army to allocate resources to transport these prisoners to the US to be tried.

"The dissenters and Justice Kennedy believe that much changes with this opinion. Kennedy sees the change clearly, but thinks it is necessary under the circumstances. If the place of confinement had been anywhere other than Guantanamo, Kennedy might have cast his vote with the dissenters.

"We are reminded that there always has been a realm into which the judicial power did not enter.

"The change wrought by Hamdi is not as great. There, an American citizen was classified as an enemy combatant, and then detained in South Carolina. Two of the justices thought that the detention was not authorized. The dissenters thought that the president's power in times of war legitimized the confinement. All of the opinions represented a departure from Ex Parte Querin, which said that US citizens are subject to trials by US tribunals.

"The decision is important, but since it is only a plurality decision, we do not know its force.

"For Rasul, though, we know the impact. It used to be thought that wartime creates a citadel which cannot be breached by the courts. The judiciary is now involved in the conflict between the president and enemy combatants, in ways that I thought they never thought they would be.

"Within the last few weeks there have been contradictory rulings as to whether or not aliens and enemy combatants have been extended constitutional process."


Q1: What is the definition of the enemy combatant? What is the difference between war against a nation with a flag compared to war against people formerly thought of as criminals.


The US feels that an enemy combatant is anyone who takes up arms against the US or anyone who aids those who take up arms against the US. This is not impossible to delineate since being an enemy alien was not necessary to being an enemy combatant.

Q2: Why doesn't the government just take the position that the public safety requires the suspension of the writ?


The writ has not been suspended by act of Congress. Lincoln suspended the writ by executive order. However, the proposition on suspending Habeas Corpus is in Article I which might lead one to believe that only Congress can suspend the writ.

Q3: By your Humble Blogger. The lesson from Ex Parte Yerger and Felker seemed to be that the only writ constitutionally guaranteed was the Supreme Court's original writ of habeas corpus. Since that writ is not at issue here, doesn't it seem extraordinary to claim that in passing the habeas statute, Congress affirmative meant to extend the writ of habeas relief to foreign enemies captured by the nation's troops in battle?


Tough to use the statutory construction used by the court. Kennedy thinks that there is a tradition that you have jurisdiction over the officer you have jurisdiction over the writ. That's why Kennedy probably doesn't think this case would work outside of Guantanamo Bay. Otherwise, the construction seems strained…

Q4: What power do the courts have to compel obedience with a writ of habeas corpus?


As Andrew Jackson said, "Mr. Marshall has made his decision now let him enforce it." For most of US history, the executive abides by the orders of the courts. If the executive refuses, then there is a constitutional crisis and we don't know what happens. We do know that Congress can limit the jurisdiction of the federal courts. If Congress wanted to avert the crisis they could take jurisdiction away. But what happens when the executive refuses to abide by a court order? There is a small crisis, but the nation survives. You could write a good book about it, but it would be fiction. Truman once refused to allow service of an order of habeas corpus. Then he went to one of Hugo Black's parties that same weekend. He figured he better make nice with Justice Black before drinking his bourbon.


Are these decisions effected by the fact that there have been no more terrorist attacks since 9/11?


In most wars, the government takes away some of our rights which we get back at the end of the war. The Supreme Court allowed the executive to get away with a lot during WWII, and then later says it was the wrong thing to do. But inevitably, the court allows the executives to get by with more during a state of dangerous war.


Eisentrager was decided in the wake of WWII when we were definitively the good guys during wars. Is there a shift now to take away powers from the executive because the war is on less sure footing?


Judge Sentelle reminds us that Truman was terribly unpopular during his own time.

Overall a very fun event, with the best parts coming during the question and answer period, especially when I asked a question. It seems anomalous to your Humble Blogger that if a field commander shot an enemy combatant and killed him, there would be no possible judicial relief for the killing, but by having the bad fortune of keeping him alive, a commander is subject to judicial review. As the old adage goes, no good deed goes unpunished. The set of decisions create strange incentives. Not least of which is, for the future, to keep prisoners far away from Cuba, so the Human Rights Lawyers' Corps will be too far away to actually demand writs of habeas corpus. I am also reminded of irony when these cases are compared to Tarble's Case. There, the states were not permitted to issue writs of habeas corpus to federal army officers to protest the conscription of Americans (classified by those who wanted the writs as confinement without due process of law). The Supreme Court, of course, denied the ability of the state courts to interfere with the functioning of the armed forces in this way. Now, we get to the strange point that an American's confinement by the army cannot be challenged by a writ of habeas corpus, but an Al Qaeda fighter's can be.


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