TCS Daily

The High Court's War on the War on Terror

By Pejman Yousefzadeh - July 7, 2004 12:00 AM

Last week, in Rasul v. Bush, the Supreme Court found that American courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad and detained at Guantanamo Bay in Cuba. In making this finding, the majority -- led by Justice John Paul Stevens -- may harm the ability of the United States government to take the fight to terrorists.

In arguing that courts cannot have jurisdiction over foreign nationals detained abroad, the government relied strongly on the Supreme Court's ruling in Johnson v. Eisentrager. There, the Court considered the case of nonresident enemy aliens who were captured in China by the United States Army, and who were tried and convicted there for the commission of war crimes. No American court ever had jurisdiction. The Supreme Court found that the aliens had no access to American courts during wartime, and that non-resident aliens had no right of habeas corpus in any U.S. court.

In his majority opinion, Justice Stevens quotes the following passage from Eisentrager:

"We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States."

According to Justice Stevens:

"Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control."

Additionally, in Eisentrager:

". . . The Court had far less to say on the question of the petitioners' statutory entitlement to habeas review. Its only statement on the subject was a passing reference to the absence of statutory authorization: 'Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.'"

Justice Stevens gets the Eisentrager standard wrong (prisoners don't have to be "nationals of countries at war with the United States," they just have to be "enemy aliens" -- which the Rasul petitioners are), and he neglects to mention that the Eisentrager Court stated that it recognized no distinctions "between citizens and aliens, nor between aliens of friendly and of enemy allegiance, nor between resident enemy aliens . . . and non-resident enemy aliens who at all times have remained with, and adhered to, enemy governments." The only distinctions that exist are that the Rasul petitioners have not yet received a trial and are classified as "enemy detainees" rather than as "prisoners of war." But the Eisentrager Court never says that all six of its criteria must be met in order to deny nonresident enemy aliens access to our courts. As such, the Eisentrager criteria are balancing factors in deciding access to our courts, or the exercise of jurisdiction abroad. Since the Rasul petitioners fail to meet all but two of the Eisentrager criteria, the Court should have found that Eisentrager was compelling precedent.

Justice Stevens also discusses past decisions in Braden v. 30th Judicial Circuit Court of Ky. and Ahrens v. Clark. He argues that the Court's decision in Braden (which had to do with a prisoner in Alabama petitioning a district court in Kentucky for a writ of habeas corpus) "overruled the statutory predicate to Eisentrager's holding." This refers to the Braden Court's finding that contra Ahrens, "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."

But as Justice Scalia made clear in his dissent, the Braden Court did not overrule Ahrens. Rather, it distinguished Ahrens. Here is the key passage from Braden:

". . . Here [in Braden], for example, the petitioner is confined in Alabama, but his dispute is with the Commonwealth of Kentucky, not the State of Alabama. Under these circumstances, it would serve no useful purpose to apply the Ahrens rule and require that the action be brought in Alabama."

Thus, while Braden was distinguished from Ahrens, it did not overrule "the statutory predicate" found in Ahrens. As such, Eisentrager was not overruled by the decision in Braden, a fact that should be especially clear given that the decision in Ahrens did not even reference Eisentrager -- as the dissent mentions.

In arguing that the United States exercises "complete jurisdiction and control" over Guantanamo Bay, where the Rasul petitioners are held, Justice Stevens relies on the language of a 1903 lease agreement, and a 1934 treaty that states that the United States "may continue to exercise such control permanently if it so chooses." But as Justice Scalia's dissent points out, that same lease agreement "explicitly recognized 'the continuance of the ultimate sovereignty of the Republic of Cuba over the [leased areas].'" There is no "complete jurisdiction and control" when in fact Cuba continues to exercise "ultimate sovereignty" over Guantanamo Bay. Justice Stevens also seized upon a statement made by Solicitor General Theodore Olson, who conceded that there would be habeas jurisdiction over an American citizen in Guantanamo Bay. But the power of the U.S. to exercise habeas jurisdiction over an American citizen abroad was put forth in Eisentrager, even while Eisentrager made clear that aliens abroad could not avail themselves of the right of habeas corpus.

It is difficult to avoid the concern that per Rasul, future enemy combatant cases might involve claims that American courts have jurisdiction over prisoners held in Afghanistan and/or Iraq. If that happens, the exact policy concerns stated by the Eisentrager Court when it delivered its opinion will come to pass:

"To grant the . . . writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. . . . Such trials would hamper the war effort and bring aid and comfort to the enemy. . . . It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States."

The Court in Rasul did not heed these concerns in writing its opinion. Its failure to do so represents both a shoddy reading and application of precedent, and an ill omen for the continuation of the war on terror.


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