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Tuesday, February 01, 2005

Who's Sovereign in Guantanamo?

Yesterday, in a decision sure to be reviewed, probably expeditiously, by the higher courts, DC District Judge Joyce Hens Green ruled in favor of non-citizen detainees seeking habeas review and contesting their detention at Guantanamo Bay in Cuba. Given the likelihood of swift review in this case, not much hangs on it at this point--the prisoners will not be freed on the basis of the District Opinion and Judge Green's inferences from recent Supreme Court opinions, particularly that in Rasul v. Bush, will soon be reviewed by that very court.

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. ยง 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.


Anonymous Anonymous said...

The implicit argument of the post is that sovereignty is not the correct test of whether an enemy alien should have standing in Article III Courts: jurisdiction and control are. It is my contention that the Supreme Court in Rasul in fact took the argument a step further, and essentially applied a pure control test, based upon faulty textual reading and an unconvincing application of precedents. I think it is quite clear that the detainees are within the territorial jurisdiction of the courts. (Which circuit controls appeals over the Guantanumo district? Furthermore, as recent cases and the diversity of filing locations show, it would seem that there is no "single" district court with jurisdiction over Cuba). Indeed, only a very, very, very strained and unconvincing reading of section 2241, which gives courts the power to hear habeus petitions "within their respective jurisdictions" yields the conclusion that Cuba is within the jurisdiction of any Article III court. In extending the protections of the constitution beyond the bounds of the citizenry, it has always been the alien's presence within the TERRITORIAL JURISDICTION of the court which gave the court the power to act. See Yick Wo v. Hopkins. If it is acknowledged that only a strained reading of 2241 yields territorial jurisdiction, the test advocated is really one of control alone. But that seems unfounded and unwise. Control over an alien, let alone an enemy alien, has never been thought in the history of this country to automatically attach constitutional boundaries to the control. Indeed, any detainment at all satisfies the control test, so all detainments necessarily yield ripe controversies. We give resident aliens wide access to courts, but that is because they are in the territorial limits: enemy aliens in times of war are almost always not, and thus have no standing to sue. Griswold v. Waddington. I have no more time to devote to this and fear my argument has not been altogether clear, but the point is, I fear what the court did in Rasul was to ask too simple a question: do we exercise control over the petitioner. Both sovereignty and jurisdiction were left by the wayside in an attempt to create an anti-historical open door police to enemy aliens detained in the field of battle.

1:51 PM  

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