Wednesday, January 19, 2011

Against Habeas Originalism

By Mike Dorf

Last week, I posted about Judge Griffith's DC Circuit dissent  from the denial of en banc review in Abdah v. Obama.  In comments and private emails, various readers took issue with my use of Abdah to discuss detention by U.S. officials at one site rather than another, given that the case law to date has mostly dealt with transfers from U.S. custody to foreign custody.  The leading decision is 2008's unanimous Munaf v. Green, which held that: a) U.S. courts have habeas jurisdiction to hear petitions from U.S. citizens held by U.S. forces participating in a multilateral force and seeking to prevent being transferred to a foreign sovereign seeking to vindicate its criminal law; but b) that such allegations did not, as a matter of substantive law, entitle them to relief.

I agree that cases like Munaf are different from cases in which a petitioner objects to being transferred from one place to another while remaining in U.S. custody, but I raised the latter issue in connection with Abdah and related D.C. Circuit cases because much of Judge Griffith's reasoning in Abdah was more general: The principles invoked and language used to argue against permitting the government to transfer custody to another sovereign apply as well to circumstances in which the government seeks to evade the writ by maintaining U.S. custody over a detainee but transferring him from a place the writ reaches (e.g., Gitmo) to one it does not (e.g., Bagram, if the courts accept the govt's argument that Bagram is constitutionally different from Gitmo).

My core point in my last post on this subject was that the place of detention should not be given talismanic significance in determining whether the writ is available to a particular detainee (and if so, whether the custody is lawful).  And my underlying concern was that the Executive can choose the detention site with an eye towards evading judicial review.  That issue was bracketed by Judge Randolph in his DC Circuit opinion in Al Maqaleh v. Gates.  He said there that "perhaps . . . manipulation by the Executive" of the custody site "might constitute an additional factor" in determining whether a particular petitioner is entitled to habeas under Boumediene v. Bush.

That "perhaps" is pretty stingy given that the original sin that has led to nearly a decade of litigation (with no end in sight) over who gets what kind of legal process in war-on-terror cases was the Bush Administration's decision to house detainees at Gitmo--far enough away from where they were apprehended to make it nearly impossible for an innocent detainee to gather evidence showing that he should be released but also, prior to the Supreme Court's rulings in Rasul, Hamdan, and Boumediene, seemingly beyond the jurisdiction of the U.S. courts.

As I noted in my last post, the courts still have not devised a satisfactory framework for sorting out who gets what process.  My main point in this post, as in my last one, is that too much emphasis has been placed on situs, and in turn, on the scope of the common law writ circa 1789.  The Supreme Court majority opinions in these cases have been careful to point out that the constitutional right to habeas covers at least what it covered in 1789, but potentially more.  Justice Kennedy's Boumediene opinion states:  "The Court has been careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ."  That's right, and yet so much of the writing about the scope of habeas--by lower court judges, lawyers, and academics--addresses itself only to the question of what is the minimum content of the constitutional right to habeas, i.e., what it protected in 1789.

Eventually, the Supreme Court will have to confront a case in which petitioners urge an interpretation of the constitutional right to habeas that is broader than the common-law writ circa 1789.  At that point, one can expect most of the Court's conservatives to say that the constitutional dimension of the writ has not evolved since 1789 (or to fall back on the view expressed by Justice Scalia in dissent in the St. Cyr case: that there is no constitutional right to habeas).  One can also expect at least some of the Court's liberals to argue that the historical evidence actually shows that the writ's scope in 1789 was broad enough to cover whatever circumstances are presented.

But one hopes (or at least I hope) that someone will forthrightly make the argument that times change: Modern means of transportation make it possible to transport prisoners over great distances much faster than they did in 1789; modern means of communication make it possible for courts to inquire into the lawfulness of detention from afar, even while affording all parties a fair opportunity to be heard; and perhaps most importantly, the fact that the enemies of the U.S. are now regularly guerrilla forces means that we can no longer assume that most detainees will obviously be lawfully held as prisoners of war or the equivalent.  In short, here we deal primarily with evolution through changed circumstances rather than through changed values.  Thus, the qualms Justices feel about invalidating laws based on evolving values should have much less room to operate when it comes to the evolution of habeas than when it comes to some other rights.

To be sure, there remain other reasons for hesitancy by the courts, especially the worry about the competence of courts in second-guessing the political branches with respect to military matters.  But the Supreme Court crossed at least part of that bridge in the cases rebuking the Bush Administration.  A robust non-originalist understanding of the Suspension Clause would not be a substantially greater challenge to separation of powers than is a robust (and contested) originalist understanding of the Suspension Clause.


Hashim said...


Whatever one's views of the wisdom of originalism, it seems to me that a "robust, non-originalist understanding of the Suspension Clause" would indisputably be "a substantially greater challenge to separation of powers than is a robust (and contested) originalist understanding of the Suspension Clause." The reason is that, although history is sometimes contested, it often is not: for example, I highly doubt that there's a single instance ever in which a uniformed solider captured on a foreign battlefield in a declared war has been able to seek habeas relief while detained in a POW camp adjacent to the battlefield where active hostilities were still ongoing. Under originalism, that is the end of the case. Under Boumediene and a "robust, non-originalist understanding," however, the Executive would be forced, at a minimum, to litigate the issue during a war and convince the judiciary why the writ should not be required in these circumstances under a multi-factor balancing test focusing, in part, on "modern means of transportion and communication." (At worst, of course, the Executive could draw radical judges who would actually apply such a multi-factor test to "update" the Suspension Clause to cover core battlefield detention.) Regardless of whether forcing the Executive to litigate such questions is a constitutional virtue or vice when all things are considered, it's unquestionably a greater challenge to the separation of powers than is created by an originalist understanding of the Suspension Clause.


Michael C. Dorf said...


I don't know why you equate nonoriginalism with balancing. It's true that Boumediene, following the constitutional piece of Eisentrager, engages in balancing, but it's quite possible that one could develop a set of bright-line rules, and indeed, I think I would favor doing just that in this context. Consider modern First Amendment doctrine, which is chock full of rules rather than standards, and pervasively nonoriginalist.

Hashim said...

You're certainly correct that nonoriginalism is not always mutually exclusive from bright-line rules. In this context, however, I'm fairly confident that you wouldn't be able to develop feasible bright-line rules. Even apart from Boumediene's actual analysis and your apparent focus on the efficacy of modern means of transportation and communication -- factors which hardly seem conducive to codification in clear rules -- I think the basic reason you'd need to use standards is your goal is to stop Executive manipulation of the locus of detention. If you adopt narrow bright-line rules for when habeas is required, then the Executive can work around them. And if you adopt broad bright-line rules for when habeas is required, then the results will likely be unpalatable and pose a greater challenge to separation-of-powers than originalism. In this context, and given your core concern, I think nonoriginalism would require standards, at which point the litigation burden alone poses a greater challenge to separation-of-powers than originalism.

Michael C. Dorf said...

Hash: I said in both this post and the last that a suitable doctrine would not give the government an incentive to manipulate the writ's availability by selecting the detention site. My emphasis has been on placing less weight on the detention site. I tend to think that a test that turns directly on whether the Executive subjectively chose a site to avoid judicial review would be very difficult to administer. That's why I offered at the end of my earlier post that it would make more sense to ask whether there are legitimate grounds for selecting a detention site, not whether the government chose the site because of those grounds. (Even then, Sam Rickless gave me a hard time from the other direction, saying that this test will be too easy for the government to manipulate. If he's right, then your worry should mostly evaporate.)