Source: - http://writ.news.findlaw.com/lazarus/20031113.html


By EDWARD LAZARUS

Thursday, Nov. 13, 2003

Every year, the Supreme Court decides a group of especially significant cases, landmarks in the evolution of our constitutional system. Last year, for example, the decisions assessing the constitutionality of the University of Michigan's affirmative action programs were among the landmarks of the Term.

And then, every once in a while, for good or for ill, the Court decides a case of truly transcendent importance - a Dred Scott v. Sanford or Brown v. Board of Education or Nixon v. United States. Such a case not only has powerful legal and political significance but also tests and illuminates the character of the Court and of the country.

Separating the transcendent cases from the merely important ones, is a task best done with benefit of hindsight. But in this column, I will hazard a prediction.

Recently, the Supreme Court granted review of the cases arising from the detention of aliens captured in Afghanistan and now imprisoned at Guantanamo. In resolving these cases, the Supreme Court will be testing nothing less than its own and the nation's commitment to the rule of law and the ideal of Americanism that may yet inspire a planet. Its decisions on these issues are almost certain to be of the kind of transcendent importance that makes or breaks not only a Term, but a Court, and even a nation.

Why the Stakes in the Guantanamo Cases Are Exceptionally High

At first blush, perhaps what I have said will seem like overstatement. After all, the actual legal issue that is before the court is fairly narrow, and extremely remote from everyday American life.

The issue is this: Do the federal courts have the authority to consider, even minimally, the legality of the detention of aliens seized last year during the fighting in Afghanistan and imprisoned at the U.S. military base at Guantanamo Bay? Or, alternatively, is their imprisonment (and eventual release, if they are ever released, and trial, if they are ever tried) a matter left entirely to the discretion of the Executive Branch?

The stakes in the Guantanamo cases, however, extend far beyond the seemingly arcane world of federal court jurisdiction. At bottom, the Bush Administration is claiming for itself the unilateral authority to detain the citizens of allied countries, hold them without charge, deny them access to lawyers, and grant them no recourse either to American courts or to relief under international law.

In short, the Administration is claiming the right to create a modern-day Bastille in which it can warehouse foreign nationals for justifications known only to itself. That question is a profoundly important one. In a technical sense, it involves the meaning of Constitutional Due Process, and its application to foreign nationals held by the U.S.. But it a deeper sense, it involves the issue of what kind of nation America wants to be - one where the Executive department considers itself legally accountable, or one where it does not.

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The Key Supreme Court Precedent Relevant to the Guantanamo Cases

As a legal matter, the Administration's position is not without some basis in past case law. The key precedent is the 1950 Supreme Court decision in Johnson v. Eisentrager.

The case arose because, near the end of World War II, a U.S. military tribunal convened in China convicted a group of Germans of aiding the Japanese against the United States -- a war crime. The Germans sought review of their convictions. But the Court ruled that U.S. federal courts had no jurisdiction to hear their claims.

Is Eisentrager just like the Guantanamo cases? The answer is no -- for three reasons.

First, the Germans had already received some due process, having been convicted of war crimes by a properly constituted legal tribunal. The Administration claims the right to imprison the Guantanamo detainees with no process at all.

Second, the Germans were clearly "enemy combatants," and thus had radically diminished legal rights. In contrast, the Guantanamo detainees say they are not -- and, indeed, that they never participated in any hostile action against the U.S.. (Far from being soldiers in enemy armies, many are citizens of countries allied with the United States.) In addition, for the purposes of assessing federal court jurisdiction, as a technical matter, these denials of enemy combatant status must be deemed to be true. And that makes perfect sense. These issues are the ones the federal court, if it had jurisdiction, would consider. They shouldn't be resolved before the court can even take a look.

Third, the Germans were held abroad. The detainees are held in Guantanamo, which (as Anupam Chander has explained in a column for this site) is U.S. territory in everything but "ultimate sovereignty" - which rests with Cuba.

Once all these facts are put together, Eisentrager seems quite inapposite. There, the Germans were seeking judicial redress as convicted enemy combatants being held on foreign soil. Here, the Guantanamo detainees are seeking judicial redress as foreign nationals neither charged with, nor convicted of, any crime, while they are being held on land entirely within U.S. control.

Still, Eisentrager is a broadly written opinion. And it contains snippets of language from which a clever lawyer (like Solicitor General Ted Olson) could plausibly argue that the combination of a foreign nationality and extraterritoriality means no constitutional rights, and no recourse to an American court. And technically, Guantanamo is extraterritorial.

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The Court's 1990 decision in United States v. Verdugo-Urquidez could also lend credence to such a view. There, the Justices ruled that U.S. agents did not have to comply with the Fourth Amendment's limits on searches and seizures when, while in a foreign country, the agents seized the property of a nonresident alien (who was wanted in a drug case).

But Verdugo-Urquidez, too, is distinguishable: Although the defendant in that case could not avail himself of the Fourth Amendment's warrant clause, he was nonetheless afforded all other due process protections afforded criminal defendants when ultimately tried. As Justice Kennedy's concurring opinion makes clear, that case stands only for the proposition that what process is "due" a non-citizen in a case involving extraterritorial actions by the United States will depend on individual facts and circumstances.

In short, the decision lends only modest support for the idea that the U.S. may permanently deny due process to detainees who are locked up in what, in effect, in U.S. territory.

Another Way the Administration Can Win: Deference on Enemy Combatant Status

Despite these distinctions, a broad reading of Eisentrager, plus reliance on a broad reading of Verdugo-Urquidez, could mean a win for the Bush Administration. And there's another way it could win, as well.

The Administration could also prevail if it convinced the Court that it must consider the Guantanamo detainees "enemy combatants" (notwithstanding their denials) because the Administration claims they are and, according to the Administration, no court has the power to review this judgment.

As noted above, such a ruling would thwart typical jurisdictional law. It would also be unfair, as it would summarily resolve against the detainees the very question they seek to have a court review -- and then deny court review based on that summary resolution. Placing someone who seeks review in that impossible position is hardly due process in any sense of the phrase.

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What Will Likely Be the True Basis for the Court's Decision

In the end, however, I don't expect that the Justices are going to decide the Guantanamo cases based mainly on a reading of the Court's precedents. Neither Eisentrager nor Verdugo-Urquidez provide clear enough guidance.

Indeed, the Executive's claim of authority to act independently of any outside legal constraint, and without providing any due process, is truly unprecedented. In Eisentrager, as noted above, convictions had already been duly rendered. In Verdugo-Urquidez, a seizure was at issue; after that seizure, process could and did follow.

As a result, the Justices have lots of room, in the Guantanamo cases, to make law without disturbing previous decisions. Thus, instead of looking to precedent, I think a majority -- including Justice Anthony Kennedy, the Court's pre-eminent moralist and a crucial swing vote -- will be moved by a visceral repulsion. They will be repelled -- rightly so -- by the idea that the Executive Branch may limitlessly detain any person without trial of any kind and hold that person incommunicado without any judicial review at all.

That didn't happen in Eisentrager or Verdugo-Urquidez. But it's happening now at Guantanamo.

For these Justices, such Executive self-aggrandizement will run headlong into basic notions of Constitutional checks and balances, and of the proper role of the Judicial Branch in particular. It will also run smack into the historical view - dating back at least to the Magna Carta - that unchecked Executive authority is a basic hallmark of tyranny.

This negative reaction, moreover, is likely to be compounded by the fact that the Administration's legal arguments will importantly hinge on a claim that, even viewed charitably, is mere hair-splitting. It is the claim that Guantanamo, land that the United States holds under lease in perpetuity and over which it exercises total control, is not U.S. territory because Cuba holds "ultimate sovereignty" to the land.

For these reasons, I believe the Court will rebuke the Administration in the Guantanamo cases. At a minimum, it will require that judicial review of "enemy combatant" status be provided.

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Even If Legally Defensible, the Bush Administration's Claims Are A Policy Disaster

Meanwhile, a question of surpassing importance remains unanswered. I've explained why the Bush Administration is able to concoct a plausible (though not convincing) legal basis for its claim of unrestrained power over the Guantanamo detainees. But why in the world is it choosing to do so?

In the international community, the Administration's approach exposes the nation to the corrosive charge of hypocrisy. The charge is simple but powerful: America cannot impose democratic norms on others while flouting the rule of law at home.

Meanwhile, this approach exposes Americans stationed abroad to the substantial danger that other countries will give Americans taken prisoner the same legal rights the U.S. is affording the Guantanamo detainees -- that is, none at all.

Even within our own borders, the Administration approaches creates risk and distrust. Most people recognize that, in the age of terrorism we now entered decisively, Americans will be called upon to trade some of their liberty for a greater assurance of security. But, at the same time, they hope that incursions on liberty will be minimized -- taken as a regrettable necessity, not a fresh opportunity to avariciously expand power.

This hope is dashed when, as in the Guantanamo cases, the Executive Branch arrogates to itself the right to exercise totally unreviewable power. Courts patrol the boundary of our liberties. But what if the courts cannot intervene?

In sum, we can be hopeful (though never extravagantly) that the Guantanamo cases will mark a decisive high note in the Supreme Court's sporadic history of checking unbridled governmental power. But it will remain a sad and troubling fact that the hubris of the Bush Administration made this test of national character necessary in the first place.
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Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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