Who's Sovereign in Guantanamo?
Nevertheless, this decision provides a good occasion for some federalist ruminating on the correct result here. I'll be brief, as I've only had a chance briefly to digest Judge Green's lengthy opinion in the case. I'll first address why I think she got the case right as a District Judge, and then I'll less confidently suggest that I think the Supremes were actually correct here in Rasul in the first place.
The parties and the judge here all took the case to be governed primarily by Rasul, leaving Green in the position whether to interpret Rasul narrowly (as the Government would have it) as a case about merely the right to file for habeas, but not touching upon the substantive rights of the petitioners here, or more broadly as suggesting that the reach of substantive rights extends to Guantanamo Bay. It's hard not to turn to Scalia's dissent in Rasul at this point:
The Court today holds that the habeas statute, 28 U.S.C. § 2241 extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts.
... In abandoning the venerable statutory line drawn in Eisentrager , the Court boldly extends the scope of the habeas statute to the four corners of the earth.
Say what you will about Justice Scalia, but he's an astute reader. I'd say he and Green are right to read the majority's intentions in Rasul more broadly than the Government suggests. On the question of granting habeas and reaching substantive questions concerning Constitutional rights in Guantanamo, then, I think Green is rightly following what appears to be the controlling precedent here. I note that I'm not addressing here her actual substantive determinations, some of which turn on classified materials, but which in any event are secondary to the broad issue whether aliens outside of U.S. territory should be able to make such claims in the first place.
Judge Green seems to rely, as did the majority in Rasul, on the fact that the U.S. exercises "complete jurisdiction and control" over Cuba as crucial in determining that the protections of the U.S. Constitution follow the Government (and bind it) there (see especially pp. 33-34 of her opinion).
But, assuming Green has Rasul right, does Rasul have the law right? The issues here are many and complex, but I just want to focus on this issue of "jurisdiction and control" over Cuba and its relationship to the notion of "sovereignty" which had been held in Johnson v. Eisentrager to be dispositive as to the reach of Constitutional rights. To wit, as Justice Scalia argues in his Rasul dissent:
The Court does not explain how "complete jurisdiction and control" without sovereignty causes an enclave to be part of the United States for purposes of its domestic laws. Since "jurisdiction and control" obtained through a lease is no different in effect from "jurisdiction and control" acquired by lawful force of arms, parts of Afghanistan and Iraq should logically be regarded as subject to our domestic laws. Indeed, if "jurisdiction and control" rather than sovereignty were the test, so should the Landsberg Prison in Germany, where the United States held the Eisentrager detainees.
Passing over the majority's efforts to distinguish Eisentrager rather than overrule it, and passing over the serious policy implications cited by Scalia's dissent, my suggestion for discussion is this: if we can agree that Eisentrager used sovereignty rather than "jurisdiction and control" to determine the reach of substantive rights to non-citizens, was that a good thing? Scalia does give a careful reading of the history of the common law here, but I'm not entirely convinced that it is clear enough to give guidance to the modern day situation in Cuba. What meaning does Fidel Castro's sovereignty over Guantanamo have? It is utterly and entirely a legal fiction so far as one can tell. Would anyone in Guantanamo be pleased to rely on the sovereignty of Cuba over against the control of the U.S. if the need should somehow arise? In short, I think it should take more than the 50 years of Eisentrager's reign as cited by Scalia to overturn a presumption that the U.S. Government cannot leave its Constitutional commitments and limitations behind when deprives people of liberty and purports to adjudicate their claims of innocence. Is the legal fiction (in this case) of sovereignty sufficient to settle the question?
I need to reread the Stevens opinion and Scalia's rejoinder more carefully to be sure--but I welcome my fellow bloggers' input to guide.