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.