Chicago law prof Richard Epstein is a smart guy, and no liberal (Wikipedia calls him "libertarian"). But his Op-Ed in Saturday's New York Times on the Supreme Court's Boumediene decision is mostly wrong. This post analyzes Epstein and expands on my initial analysis of the case.
Epstein correctly calls Boumediene's reasoning confused (hyperlinks added):
At the core of the dispute in Boumediene is the Constitution’s suspension clause: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Unfortunately, the text neglects to specify the grounds for granting habeas corpus. And historical precedent is inconclusive on the question of when it should be available to aliens held in American custody outside the United States.Epstein rightly exposes Kennedy's strained effort distinguishing and re-interpreting Eisentrager. In reality, the Boumediene majority essentially overturns the case.
In Johnson v. Eisentrager, in 1950, a case involving illegal German combatants from World War II, the court held that citizens could bring habeas corpus whether they were detained in the United States or abroad. Aliens, on the other hand, had the right only if they were detained within the United States. In writing the Eisentrager decision, Justice Robert Jackson mentioned the practical and financial difficulties of prosecuting enemy aliens overseas, but gave them little weight.
Now, in his majority opinion in Boumediene, Justice Anthony M. Kennedy has made that minor issue in Eisentrager into a key element of the case, acknowledging [in Section IV.A] that the government may have to go to some trouble, and expense, to ensure that the prisoners at Guantánamo are able to challenge their detentions. Boumediene need not have rested on this sleight of hand.
Which is the main flaw in Boumediene's reasoning and Epstein's matter-of-fact assertion that "[t]he 5-4 decision was correct." As experts have shown, and I've echoed, Justice Kennedy's decision "mangles the difference between military and civilian justice." And it does so by discarding plain and long-standing precedent:
- In re Yamashita, 327 U.S. 1, 8 (1946) ("it must be recognized throughout that the military tribunals which Congress has sanctioned by the Articles of War are not courts whose rulings and judgments are made subject to review by this Court.").
- Ex Parte Quirin, 317 U.S. 1, 40 (1942) ("Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts.").
- Ex parte Vallandigham, 68 U.S. 243, 251 (1863) ("Nor is a military commission a court within the meaning of the 14th section of the Judiciary Act of 1789. That act is denominated to be one to establish the judicial courts of the United States, and the 14th section declares that all the 'before- mentioned courts' of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, agreeably to the principles and usages of law. The words in the section, 'the before-mentioned' courts, can only have reference to such courts as were established in the preceding part of the act, and excludes the idea that a court of military commission can be one of them.").
Overruling Eisentrager on this point would not routinely entitle everyone to habeas corpus all the time. Enemy prisoners of war are never granted it, either in the United States or abroad. What matters is whether a prisoner is or is not an enemy combatant. . .No--contrary to Epstein, the issue isn't whether a detainee is an enemy combatant, as opposed to the other recognized class of persons under a country's control in wartime--"civilians," which cover solely unarmed non-belligerents. Rather, as the cases quoted above demonstrate, practice and precedent prior to last week never offered alien enemy belligerents captured abroad the rights of criminal defendants or forced criminal prosecution by military commissions. Ex Parte Milligan, 71 U.S. 2, 118-22 (1866). Instead, the Article III process and Bill of Rights protections extended, at most, to enemy combatants who were not citizens of belligerent nations--the Rasul case--or American citizens--the Hamdi case, particularly if captured on the battlefield and held by U.S. or coalition forces--the Munaf case, decided the same day as Boumediene, and perhaps particularly (though never expressly decided) those captured in the United States--the Padilla case.
If found to be enemy combatants, they can be held for the duration of the war and interrogated, if desired, as any other detainees. If not, they must be tried for some particular offense or released.
In contrast to Epstein's off-hand assumption, the term "enemy combatant" covers all wartime opponents under force of arms. Enemy combatants are sub-divided into "lawful combatants" and "unlawful combatants." The former are armed belligerents in uniform obeying the laws of war--when captured, they are Prisoners of War, entitled to the rights agreed to in the Third Geneva Convention. By contrast, armed belligerents without uniforms or who violate the laws of war, e.g., by targeting civilians or feigning surrender, are unlawful combatants. But both sorts are "enemy combatants" subject to military, not civilian justice. (To be fair to Epstein, our military similarly mixed-up "enemy combatants" and "unlawful enemy combatants" only last year.)
Still skeptical? Well, remember that another term for unlawful combatants is "war criminals." And such persons are subject under the laws of war to "reprisals," which are:
acts of retaliation in the form of conduct which would otherwise be unlawful, resorted to by one belligerent against enemy personnel or property for acts of warfare committed by the other belligerent in violation of the law of war, for the purpose of enforcing future compliance with the recognized rules of civilized warfare.In fact, Article 5 of the Fourth Geneva Convention sets the low threshold of "definite suspicion" to exempt unlawful combatants from trial:
Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.Plainly, the phrase "in case of trial" doesn't demand one. And, despite crazy comparisons of loud music to torture, civilized detention to concentration camps, and false media frenzies about Koran-flushing, we treat Git'mo detainees with humanity. And, "Surely, the fact that we released detainees who were not "illegal, enemies, or combatants" underscores the justice of our system."
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
Lastly, Epstein's favored outcome represents a massive extraterritorial extension of the Constitution. Some background: Roman jurisprudence, persisting until the middle ages, made law personal to the subject, so Roman law might apply to Roman citizens wherever they traveled. Today, a country's laws are "bound by the reach of the sovereign," and seldom spill-over to other territories or run to aliens. The modern reach of the laws of nation-states was articulated over 150 years ago by Associate Justice Joseph Story in his famous Commentaries on the Conflict of Laws, which says (at 8-9):
It is plain, that the laws of one country can have no intrinsic force, proprio vigore, except within the territorial limits and jurisdiction of that country. They can bind only its own subjects, and others, who are within its jurisdictional limits; and the latter only, while they remain therein. No other nation, or its subjects, are bound to yield the slightest obedience to those laws. . . This is the natural principle flowing from the equality and independence of nations. For it is an essential attribute of every sovereignty, that it has no admitted superior, and that it gives the supreme law within its own dominions on all subjects appertaining to its sovereignty.So, normally, "A sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders." Wilson v. Girard, 354 U.S. 524, 529 (1957).
With that as preface, Epstein argues:
Nothing in the suspension clause distinguishes citizens from aliens. Likewise, the due process clause extends its constitutional protections to all “persons,” citizens and aliens alike. If the conditions for suspending habeas corpus are identical for citizen and alien, so too should be the conditions for applying it. If citizens overseas are entitled to habeas corpus, so are aliens.The first part of Epstein's last sentence is covered by this month's decision in Munaf v. Geren, Nos. 06-1666 and 07-394 (June 12, 2008), a modest extraterritorial extension limited to citizen belligerents captured abroad by U.S.-led forces. But Epstein offers no support for his assertion that extending constitutional coverage to citizen belligerents overseas necessarily obliges similar treatment of belligerent aliens abroad, whose only connection with America is warring on it. As Stephen Bainbridge says:
Surely Epstein does not mean to say that US courts could exercise extraterritorial jurisdiction to impose a writ of habeas corpus on foreign officials holding either US citizens or aliens in a foreign jail. I took International Law a long time ago, but my vague recollections of the doctrine of extraterritorial jurisdiction, as well as those of comity, Act of State, and sovereign immunity all suggest that such a jurisdictional claim would be impermissible.Indeed, Epstein's result would reverse Hirota v. MacArthur, 338 U.S. 197 (1948), an attempted Habeas Corpus review by senior Japanese government and army officials sentenced for war crimes by the International Military Tribunal for the Far East but held by the American Eighth Army:
We are satisfied that the tribunal sentencing these petitioners is not a tribunal of the United States. The United States and other allied countries conquered and now occupy and control Japan. General Douglas MacArthur has been selected and is acting as the Supreme Commander for the Allied Powers. The military tribunal sentencing these petitioners has been set up by General MacArthur as the agent of the Allied Powers.338 U.S. at 198 (Per Curiam opinion). And what limits the reach of Epstein's extension of U.S. sovereignty? Can pick-pockets invoke the writ--if arrested in Baghdad by U.S. ally Iraq? Epstein doesn't say.
Under the foregoing circumstances the courts of the United States have no power or authority to review, to affirm, set aside or annul the judgments and sentences imposed on these petitioners and for this reason the motions for leave to file petitions for writs of habeas corpus are denied.
Conclusion: Historically, leftists opposed expanding the extraterritorial reach of U.S. laws. That's changed, as defense lawyers takeover anti-terrorism, as John Yoo predicts:
Judicial micromanagement will now intrude into the conduct of war. Federal courts will jury-rig a process whose every rule second-guesses our soldiers and intelligence agents in the field. A judge's view on how much "proof" is needed to find that a "suspect" is a terrorist will become the standard applied on the battlefield. Soldiers will have to gather "evidence," which will have to be safeguarded until a court hearing, take statements from "witnesses," and probably provide some kind of Miranda-style warning upon capture. No doubt lawyers will swarm to provide representation for new prisoners.Contrary to those claiming a vindication of individual rights, the Constitution demands no such result:
So our fighting men and women now must add C.S.I. duties to that of capturing or killing the enemy. Nor will this be the end of it. Under Boumediene's claim of judicial supremacy, it is only a hop, skip and a jump from judges second-guessing whether someone is an enemy to second-guessing whether a soldier should have aimed and fired at him.
The rules of war are distinct from criminal process, and Bill of Rights protections have never been obliged under military law. So it's not true that no rules exist; the rules and rights simply are different, U.S. military law deriving from Article I, Section 8, clauses 10, 14 & 16, not the first ten Amendments.The war on terror needs, as Consul-At-Arms says, "less Habeas, More Corpses." But, as a result of the SCOTUS ruling, the detainee lawyers are multiplying, inventing new combatant rights, and securing extensive military and judicial review. Put differently, the Boumediene decision imposed on our military acting outside America command by courts, contrary to the President's Commander in Chief authority and a Constitution that historically has little say abroad. Either could put our soldiers at risk and hamstring the battle against radical Islam as it has in Europe. Until now, I thought Richard Epstein way too wise to call that "correct." Especially since the prior process was working.
The ironic result of Boumediene is to provide suspected unlawful combatants greater rights than either POWs or U.S. soldiers accused of violations of military law. That's neither just nor consistent with the rule of law.
My one solace is that Congress could "fix" Boumediene either by suspending Habeas Corpus for alien enemy combatants captured abroad or by crafting narrow policies for judicial review of Git'mo detainees. But will an anti-Bush, Democrat majority Congress do that? On that wager, I'll take the under.
Ed Whelan on National Review's Bench Memos:
Epstein apparently even imagines that the constitutional guarantees of “persons” flow equally to aliens, as he breezily observes that “the due process clause extends its protection to all ‘persons,’ citizens and aliens alike”, and that “If citizens overseas are entitled to habeas corpus, so are aliens.” There is, so far as I’m aware, no precedent for recognizing in aliens abroad the same constitutional rights of “persons” that U.S. citizens abroad have, and the very idea is inimical to a sound understanding of what “We the People” established through the Constitution—a framework for “secur[ing] the Blessings of Liberty to ourselves and our Posterity.”More generally, read American University law prof Kenneth Anderson:
Justice Kennedy in Boumediene — gazing with Olympian remove and no small disdain upon the complex, highly negotiated work of the two political branches — tossed aside the heart and guts of the MCA and DTA as self-evidently unworthy, in judicial rhetoric at once lofty but utterly vacuous. It is passing strange and distinctly unhelpful that the Court’s swing vote should also be its intellectually least prepossessing, and the justice most given to writing opinions in the obfuscatory tone of God addressing eternity.And don't miss Powerline's Scott Johnson breaking down Barack's reaction to the decision, in the New York Post:
Obama approves: He recently asserted that the "principle of habeas corpus, that a state can't just hold you for any reason without charging you and without giving you any kind of due process - that's the essence of who we are."(via Conservative Grapevine (twice), Wolf Howling (twice), SCOTUS Blog, Clark Arend)
He explained: "I mean, you remember during the Nuremberg trials, part of what made us different was even after these Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court and that taught the entire world about who we are, but also the basic principles of rule of law. Now the Supreme Court upheld that principle."
Oops. At Nuremberg, an international military commission composed of representatives of the victorious Allies put the top surviving Nazi leaders on trial starting in late 1945.
Yet, in Boumediene, the Supreme Court disapproved of the system of military commissions that Congress had adopted for Gitmo (at the high court's previous urging). Thus, the Nuremberg defendants' "day in court" came before a kind of tribunal found constitutionally inadequate in the decision Obama was praising.
The Nazi war criminals had no access to US courts. The fair-trial provision of the charter governing the trial was relatively skimpy - and the provision on appeal rights was even shorter and sweeter: The defendants had no right to appeal. The procedures the court found deficient in Boumediene, by contrast, provided for appeal rights to the DC Circuit, the most prominent US bench below the Supreme Court.
In short, the procedural protections for Gitmo detainees under the statute before the Supreme Court in Boumediene exceed those accorded the Nuremberg defendants.