And Now Some Praise for Justice Thomas

By Mike Dorf

In my post yesterday, I gave Justice Thomas a hard time for taking the view that corporations are constitutionally entitled to make campaign expenditures without having to comply with a statutory duty to disclose that they are doing so.  Today I want to praise Justice Thomas for his dissent from the denial of certiorari in Noriega v. Pastrana.   Former Panamanian dictator Manuel Noriega, who is scheduled to be released from federal custody shortly, filed a habeas corpus petition arguing that the the U.S. would violate the Geneva Conventions if it followed through on its plans to send him to France for further trial, rather than allowing him to return to Panama.

Here's the core of Noriega's argument:

1) The provision of the Military Commissions Act (MCA) that, by its terms, appears to strip federal habeas courts of the power to grant relief under the Geneva Conventions, is actually best read as not doing so.

2) If, by contrast, the MCA does strip habeas courts of power to grant relief for violations of the Geneva Conventions, then it works an unconstitutional suspension of the privilege of the writ of habeas corpus.

3) Thus, either way, Noriega is entitled to rely on the Geneva Conventions, which prevent his transfer to France.

The district court rejected this argument at step 3, whereas the appeals court rejected 1 and 2.  The Supreme Court declined to review the case, over a dissent by Justice Thomas, joined by Justice Scalia.  Thomas says that questions 1 and 2 are difficult and that they are implicated in a great many pending cases involving detainees at Gitmo and elsewhere; thus, he says, the Court should have taken Noriega's case to resolve the issue, thereby saving lower courts and parties countless hours, days, weeks or even years of litigation.

If I were in the mood to be churlish, I'd say that the point of federal court litigation is not to resolve general questions but to decide concrete cases.  However, even though the SCOTUS sometimes says that sort of thing, it's wrong: The point of discretionary jurisdiction in the SCOTUS is so that the Justices can decide what issues are most important to resolve.  Justice Scalia has pretty consistently taken the position (with which I agree) that the Supreme Court should not try to resolve everything as narrowly as possible, precisely because of the law-clarification function that certiorari serves.

So far so good, but what I really like about Justice Thomas's dissent in Noriega is the even-handedness with which he presents the issues.  I doubt that Justice Thomas thinks there is much to Noriega's claims.  Indeed, even I think that points 1 and 2 are losers, and thus that point 3 is irrelevant.  Here's the relevant language of the MCA:
No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.
Although the Court has previously found wiggle room in seemingly unambiguous laws to avoid having to decide Suspension issues, I don't see any here.  Thus, the statutory argument (point 1) looks like a loser.

What about the Suspension claim?  Habeas currently provides a remedy to persons "held in violation of the Constitution, laws, or treaties of the United States," and congressional efforts to cut back on that protection without formally suspending the privilege of the writ are, per Boumediene v. Bush, violations of the Suspension Clause.  But surely the govt was right in its opp cert that this does not mean that any change in the underlying law is thus a violation of the Suspension Clause.

Here's an obvious example: Suppose that a federal statute bans solitary confinement but that Congress then repeals the statute.  Jones is placed in solitary confinement.  Does his confinement violate the Suspension Clause?  Of course not.  Had Jones been placed in solitary prior to the statute's repeal, he would have been entitled to habeas relief because he would have been in custody in violation of the "laws . . . of the United States."  But the repeal of the anti-solitary law is a change in the substance of those "laws," not a scaling back of his entitlement to habeas as such.

Likewise with a treaty.  If the United States were to formally abrogate its accession to the Geneva Conventions, then anyone held in violation of the Geneva Conventions would not be in custody in violation of the "treaties of the United States."  And just as in our solitary example, the abrogation of the treaty would not be a suspension.

The answer would seem to be the same where we have a hybrid case--i.e., where, as in the MCA, an arguably self-executing treaty obligation is superseded by a statute.  That may be an appalling thing to do (as I think it was), but again, here we have a change in the substantive law governing persons held in custody, rather than a change in the scope of the writ.

Or at least so it appears to me.  I admit that there are arguments to the contrary.  What I admire about Justice Thomas's Noriega dissent is that he presents the legal issues without even hinting that he thinks the underlying claim is meritless.  And you can be pretty sure that if I think the claim is a loser, Justice Thomas thinks so too.