Rasul v. Bush

The Guantanamo detainees – approximately 640 people from a variety of nations who were captured in Afghanistan and are being held by the American military at the naval base in Guantanamo Bay, Cuba – occupy an unusual legal limbo. By labelling them “unlawful combatants,” the Bush administration has denied them status as either criminals or prisoners of war, either of which would entitle them to certain legal protections. Guantanamo Bay is itself in a sort of legal limbo. As the court summarizes in its 45-page decision:

Petitioners, 2 Australians and 12 Kuwaitis captured abroad during the hostilities [in Afghanistan], are being held in military custody at the Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba's ultimate sovereignty, but giving this country complete jurisdiction and control for so long as it does not abandon the leased areas.

Or, as Justice Kennedy puts it:

this lease is no ordinary lease. Its term is indefinite and at the discretion of the United States. ... From a practical perspective, the indefinite lease of Guantanamo Bay has produced a place that belongs to the United States

But should the courts take a “practical perspective” or follow the letter of the law, under which Guantanamo is Cuban sovereign territory? When those two Australians and twelve Kuwaitis filed petitions of habeas corpus in US District Court, the Court rejected their petition, claiming to have no jurisdiction outside the United States. The detainees appealed, and the Appeals Court likewise rejected their petition.

Jurisdiction Explained

Suppose you’re a handsome prince whose girlfriend Rapunzel has been locked in an enchanted tower by a wicked witch. Your fear of heights makes the whole hair-climbing thing a last resort, so you’d rather get Rapunzel out with a writ of habeas corpus. The basics are simple: Rapunzel is the petitioner, the witch is the respondent, and the law refers to you as Rapunzel’s next friend, which means that you’re dealing with the court in her stead because she’s stuck in an enchanted tower. But things start to get complicated when you have to decide which court to go to: the tower is in one federal court district, while the witch lives in another. You could imagine going to either one, or even to some third court just because you happened to be passing through its district when you got the idea.

This problem doesn’t come up very often, because jailers without magical powers stay close to their prisoners so that they don’t get away. In most habeas corpus cases the petitioner, the respondent, and the next friend are all in the same place, and the nearest federal court is the logical one to petition. But there is still a conceptual difference: is the petition filed for Rapunzel (which would naturally happen in the district of the tower) or against the witch (in her home district)? Or are all courts equally responsible for seeing justice done, so that it doesn’t matter?

Originally, it didn’t matter. But after the Civil War, Congress decided that it didn’t make sense for courts in Maine to be deciding whether prisoners in Missouri were being held legally or not. Congress passed a law saying: “Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” And jurisdiction has been interpreted to mean (with very few exceptions) that the prisoner is inside the district. So the right court for Rapunzel’s petition is the one whose district contains the enchanted tower.

Patching Holes in the Law

Now imagine that the enchanted tower is in Guantanamo. Because it lies outside the United States, it isn’t within the district of any federal court. So Rapunzel might fall through a hole in the law (or a “statutory gap” as Justice Stevens puts it). It could turn out that even though she has a constitutional right to habeas corpus, no federal court has the jurisdiction to give it to her.

Judges disagree about what a court should do when it finds such a hole in the law. Some – like Justice Stevens – think that the court should take responsibility for seeing justice done, even if it means inventing a legal process that Congress has never authorized. (The Supreme Court has done this on many occasions, and does it in spades in the Hamdi case.) Others – like Justice Scalia – say that any hole in the law is Congress’ problem; the court should let the injustice stand and wait for Congress to patch the hole, even though that patch (if it comes at all) will probably come too late for Rapunzel.

The Eisentrager Precedent

Finally, what if the witch is an American citizen, but Rapunzel isn’t? A court might go out on a limb and invent a process to protect the rights of an American citizen, but what responsibility does it have to non-citizens? What if there’s even reason to believe that Rapunzel is an enemy of the United States? Remember: the habeas petition is usually thought of as being filed for the petitioner, not against the respondent. What, if anything, do we owe to non-citizens who may be our enemies? Why should we do anything for them?

The closest thing we have to such a Rapunzel v. Witch precedent is a case the Supreme Court decided in 1950: Johnson v. Eisentrager. This is the case both the District and the Appeals Court quoted when they dismissed the habeas petition of the Guantanamo detainees.

When Germany surrendered to the Allies in April, 1945, twenty-one Germans were in China gathering intelligence for the Japanese. By the laws of war, they should have stopped working against the Allies and turned themselves in. They didn’t. They were taken into US custody when the Japanese surrendered months later, tried and convicted by a US military court in China for violating the laws of war, and sent back to the US occupation zone in Germany to serve their sentences in a US military prison. The Germans filed a habeas corpus petition in US District Court. The Court rejected the petition, saying that it had no jurisdiction over enemy aliens held overseas. An Appeals Court overruled. The Supreme Court reversed the Appeals Court, throwing out the Germans’ petition.

Justice Robert Jackson, writing for the Supreme Court’s majority in Eisentrager, reviewed the rights that the United States has traditionally granted to resident aliens, even up to allowing resident aliens from countries at war with us to sue in our courts except “as necessary to prevent use of the courts to accomplish a purpose which might hamper our own war efforts or give aid to the enemy.” But he found no reason to open American courts to the suits of nonresident enemy aliens. Hence the doctrine quoted by the District Court in the Guantanamo case: “aliens detained outside United States sovereign territory may not invoke habeas relief.”

Other opinions in the Eisentrager case – if they had prevailed – would have been friendlier to the Guantanamo detainees. The Appeals Court that Jackson was overruling had made the hole-in-the-law argument to claim jurisdiction. As Jackson summarized:

It concluded that any person, including an enemy alien, deprived of liberty anywhere under any purported authority of the United States, is entitled to the writ [of habeas corpus] if he can show that extention to his case of any constitutional rights or limitations would show his imprisonment illegal; that although no statutory jurisdiction of such case is given, courts must be held to possess it as part of the judicial power of the United States; that where deprivation of liberty by an official act occurs outside the territorial jurisdiction of any District Court, the petition will lie in the District Court which has territorial jurisdiction over officials who have directive power over the immediate jailer.

In other words, the Appeals Court found jurisdiction by reinterpreting the petition against the respondent, rather than for the petitioner. It decided that if the jailer (or somebody with command authority over the jailer) is in your district, and if otherwise the petitioner will fall through a hole the law (because nobody else has jurisdiction), then you can claim jurisdiction. But the Supreme Court wasn’t convinced.

Even some of the Supreme Court justices, though, wanted to allow the Germans’ petition to be heard. In a dissenting opinion in Eisentrager, Justice Hugo Black asked precisely the question that arises in Rasul:

Does a prisoner’s right to test legality of a sentence then depend on where the Government chooses to imprison him? ... The Court is fashioning wholly indefensible doctrine if it permits the executive branch, by deciding where its prisoners will be tried and imprisoned, to deprive all federal courts of their power to protect against a federal executive’s illegal incarcerations.

The Majority Opinion

In the Guantanamo case, Rasul v. Bush, the detainees filed their suit in the District of Columbia, the home district of President Bush, who is the primary official with “directive power over the immediate jailer.” As Justice Stevens summarizes:

In 2002, petitioners, through relatives acting as their next friends, filed various actions in the U.S. District Court for the District of Columbia challenging the legality of their detention at the [Guantanamo Naval] Base. All alleged that none of the petitioners has ever been a combatant against the United States or has ever engaged in any terrorist acts. They also alleged that none has been charged with any wrongdoing, permitted to consult with counsel, or provided access to the courts or any other tribunal.

Stevens, writing for the Court majority of himself and Justices O’Connor, Souter, Breyer, and Ginsberg, found that the petitioners do have a right to have their habeas petition heard by the District Court.

Whether and what further proceedings may become necessary after respondents make their response to the merits of petitioners' claims are matters that we need not address now. What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. Answering that question in the affirmative, we reverse the judgment of the Court of Appeals and remand for the District Court to consider in the first instance the merits of petitioners' claims.

In other words, a whole new can of worms has opened up as to the kind of hearings the District Court will need to have. (For an indication of where this might go, see the Hamdi decision.)

So, how did Stevens and the majority arrive at their conclusion? Frankly, I find myself in the same position as Justice Kennedy, who agreed with the majority’s conclusion but could not support their reasoning.

While I reach the same conclusion, my analysis follows a different course. Justice Scalia exposes the weakness in the Court's conclusion

In essence, Stevens presents an argument for circumventing Eisentrager’s conclusion of non-jurisdiction, and never does present a positive reason for extending the Court’s jurisdiction. He interprets Eisentrager narrowly, not as denying a nonresident alien’s right to habeas corpus, but merely as denying the Court’s power to grant it. His main point: the interpretation of jurisdiction has changed since Eisentrager, and this change in the accepted interpretation fixes the argument made by the Eisentrager Appeals Court which was rejected by the Supreme Court.

Because subsequent decisions of this Court have filled the statutory gap that had occasioned Eisentrager's resort to [constitutional principles rather than statutory authority] persons detained outside the territorial jurisdiction of any federal district court no longer need rely on the Constitution as the source of their right to federal habeas review. In Braden v. 30th Judicial Circuit Court of Ky. (1973), this Court held ... that the prisoner's presence within the territorial jurisdiction of the district court is not "an invariable prerequisite" to the exercise of district court jurisdiction under the federal habeas statute. Rather, because "the writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody," a district court acts "within [its] respective jurisdiction" within the meaning of [the habeas corpus statute] as long as "the custodian can be reached by service of process."

So in other words, Stevens finds a Supreme Court decision (Braden) subsequent to Eisentrager that says it is OK to interpret a habeas petition against the respondent under certain circumstances. If you can do that, there’s no reason to reject the argument the Appeals Court made in Eisentrager.

In the end, the answer to the question presented is clear. Petitioners contend that they are being held in federal custody in violation of the laws of the United States. No party questions the District Court's jurisdiction over petitioners' custodians. [The statute] requires nothing more. We therefore hold that [the statute] confers on the District Court jurisdiction to hear petitioners' habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base.

Who Should Fix Holes in the Law?

Any talk of Court decisions filling a “statutory gap” is going to set off Justice Scalia. In his view, fixing holes in the law is Congress’ job, not the Court’s.

No matter to whom the writ is directed, custodian or detainee, the statute could not be clearer that a necessary requirement for issuing the writ is that some federal district court have territorial jurisdiction over the detainee. Here, as the Court allows ... the Guantanamo Bay detainees are not located within the territorial jurisdiction of any federal district court. One would think that is the end of this case.

Scalia invokes the principle of stare decisis (Latin for: “To stand by decisions”), which says that a court should not reverse a precedent without a very good reason. This principle gives the law some stability. If each court started with a blank slate, no one could be sure what a law will mean the next time a court looks at it.

And on the rare occasions when the Supreme Court does reverse itself, it is considered good form to lay out the new principles clearly, so that people have a chance to understand the extent of the change. It’s a judgment call whether Stevens is reversing Eisentrager or just circumventing it by extending the Braden decision, but it is clear that he did not give the kind of detailed reasoning and revisioning that a reversal would require. Scalia takes him to task:

The reality is this: Today's opinion, and today's opinion alone, overrules Eisentrager; today's opinion, and today's opinion alone, extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts. No reasons are given for this result; no acknowledgment of its consequences made. By spurious reliance on Braden the Court evades explaining why stare decisis can be disregarded, and why Eisentrager was wrong. Normally, we consider the interests of those who have relied on our decisions. Today, the Court springs a trap on the Executive, subjecting Guantanamo Bay to the oversight of the federal courts even though it has never before been thought to be within their jurisdiction--and thus making it a foolish place to have housed alien wartime detainees.

The consequences of Stevens’ opinion (which can now be cited as a precedent in future habeas corpus cases) are unclear, because his conclusion was quite narrow, but his reasoning much more broad. Stevens’ conclusion seems to apply very specifically to this case:

United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay.

And he mentions some of the special attributes of Guantanamo:

The question now before us is whether the habeas statute confers a right to judicial review of the legality of Executive detention of aliens in a territory over which the United States exercises plenary and exclusive jurisdiction, but not "ultimate sovereignty."

But his reasoning (that the Braden precedent allows a court to interpret a habeas petition against its respondent) has nothing to do with Guantanamo. Scalia comments:

[Justice Stevens] flatly rejected such an approach, holding that the place of detention of an alien has no bearing on the statutory availability of habeas relief, but "is strictly relevant only to the question of the appropriate forum." ... Once that has been said, the status of Guantanamo Bay is entirely irrelevant to the issue here. The habeas statute is (according to the Court) being applied domestically, to "petitioners' custodians,"

Scalia concludes:

Congress is in session. If it wished to change federal judges' habeas jurisdiction from what this Court had previously held that to be, it could have done so. And it could have done so by intelligent revision of the statute, instead of by today's clumsy, countertextual reinterpretation

The Kennedy Concurrance

Justice Kennedy tries to fix these problems in his concurring opinion. He returns to the Eisentrager decision, in which Justice Jackson constructed a ladder of alien rights. At the bottom of Jackson’s ladder was the nonresident enemy alien, at the top the resident alien applying for American citizenship. The courts, Jackson claimed, owed essentially nothing to the nonresident enemy alien, but increasing levels of protection to each rung on the ladder, with the prospective citizen deserving almost as much protection as a citizen. These rights are balanced against the responsibility of the executive to defend the country. Justice Kennedy applies this structure to Guantanamo and finds two relevant features:

The facts here are distinguishable from those in Eisentrager in two critical ways, leading to the conclusion that a federal court may entertain the petitions. First, Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities.

Secondly, because the Guantanamo detainees are from friendly countries and have never had an impartial hearing, we don’t really know that they’re enemies.

In Eisentrager, the prisoners were tried and convicted by a military commission of violating the laws of war and were sentenced to prison terms. ... Indefinite detention without trial or other proceeding presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.

Personally, I find this argument far stronger than the majority opinion, and far less open to future abuse. It would leave the Court in a good position to take the role envisioned by Justice Black’s dissent in Eisentrager: reviewing the procedures of a military tribunal, to see whether the tribunal was well constituted, fairly administered, and produced sentences within its warrant. Black did not want the Court to re-try the cases of military tribunals, but merely to make sure that the process itself was not a miscarriage of justice. I think that would be a good role for the Court in the current situation, and would at the very least make the Pentagon get serious about giving the Guantanamo detainees a fair hearing.

What Happens to the Detainees?

Their habeas corpus petition, which was rejected by the lower courts, is reinstated. It goes back to the District Court for a hearing. What kind of hearing they will get is a whole other set of issues, as the Hamdi case makes clear. Because Hamdi is an American citizen and these detainees are not, the government will fight extending to them the degree of process that the Court mandated for Hamdi. I would not be surprised to see this case go back to the Supreme Court several times for resolution of various procedural issues.

Most likely, this decision will force the government to get serious about its plans for military tribunals, which it has been talking about for some time. Clearly, the rules for these tribunals will have to be somewhat more favorable to the detainees than the rules originally proposed. For example, under the original rules the government would not have to release a detainee even if the tribunal found him innocent. Now that a civilian court has been empowered to look over the government’s shoulder, it is hard to imagine such a rule standing. Justice Kennedy has already distinguished these detainees from those in the Eisentrager case because the Germans had been convicted in a military tribunal, whereas the Guantanamo detainees have not been tried. If they were tried and found innocent, the difference would be night and day.

The other unknown is whether the other 600+ detainees will file habeas corpus petitions now that they have the right to do so. And given that each district court has equal claim on their cases, will they all file in the same court or each in a different court? Now that the Supreme Court has established the right of habeas corpus in Guantanamo, it would make sense for Congress to assign its jurisdiction to a particular court to avoid having 600+ fundamentally identical cases all treated differently. But is Congress sufficiently on the ball to do that? And if it doesn’t, will the courts let chaos reign, or do something sensible even without Congressional authorization? Stay tuned.

Doug Muder

4 July 2004

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