A War Like No Other (39 page)

15
.
Hamdi,
542 US at 533.

16
. Ibid., 539.

17
. Ibid., 553 (Souter, J., concurring).

18
. Ibid., 533, 537.

19
. Ibid., 535.

20
. Ibid., 538. Justice O’Connor did not rely on
Ex Parte
Quirin for that proposition, and with good reason.
Quirin
involved seven German soldiers who were captured within the United States, which they had entered for purposes of sabotage. One of them claimed to be an American citizen. The Supreme Court allowed all seven prisoners to be tried by military tribunal, but in contrast to
Hamdi,
in
Quirin
it was undisputed that the prisoners were German soldiers and thus enemy combatants.
Ex Parte
Quirin, 317 US 1 (1942).

21
. Ibid., 554 (Souter, J., concurring).

22
. 424 U.S. 319 (1976).

23
. Owen Fiss,
The Law As It Could Be
(New York: NYU Press, 2003).

24
. Goldberg v. Kelly, 397 U.S. 254 (1970).

25
. 452 U.S. 18 (1981); see also M.L.B. v. S.L.J., 519 U.S. 102 (1996).

26
. See Perry v. Sindermann, 408 U.S. 593 (1972); Bd. of Regents v. Roth, 408 U.S. 564 (1972).

27
. After the Supreme Court’s ruling, lawyers for Yaser Hamdi and the government began negotiations. On October 11, 2004, Hamdi was released from custody and transferred to Saudi Arabia. The release agreement requires Hamdi to renounce any claim to United States citizenship and to obey travel restrictions preventing him from travel to the United States, Afghanistan, Iraq, Israel, Pakistan, Syria, and the West Bank and Gaza Strip.

28
.
Rasul,
542 U.S. at 481.

29
. Johan Steyn, “Guantánamo Bay: The Legal Black Hole,”
International and Comparative Law Quarterly
53, no. 1 (2004): 1–15.

30
. Al Odah v. United States, 321 F.3d 1134, 1141 (D.C. Cir. 2003),
rev’d sub nom.
Rasul v. Bush, 542 U.S. 466 (2004).

31
. Khalid v. Bush, 355 F. Supp. 2d 311, 323 (D.D.C. 2005),
vacated sub nom.
Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007),
rev’d,
553 U.S. 723 (2008).

32
. Ibid., 322.

33
. In re Guantánamo Detainee Cases, 355 F. Supp. 2d 443 (D.D.C. 2005).,

34
. These claims might be made under the Alien Torts Claims Act, 28 U.S.C. § 1350 (2000), on the theory that torture violates various treaties or international norms prohibiting torture. The act, dating from the earliest days of the Republic, grants the district courts original jurisdiction of civil actions by aliens for torts committed in violation of the law of nations or a treaty of the United States. On December 30, 2005, a federal statute was passed, providing: “No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.” Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006, Pub. L. No. 109–148, 119 Stat. 2739 (2006). The means of enforcing this prohibition were not specified in the statute, and on signing the legislation, the president stated that he did not view the statute either to give rise to a private cause of action or to be enforceable through habeas corpus. The president further insisted that he will construe the statute in a manner consistent with his authority as commander in chief and the constitutional limitations on the judicial power. “Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006,”
Weekly Compilation of Presidential Documents,
December 30, 2005, 1918. The new statute defines “cruel, inhuman, or degrading treatment or punishment” as consisting of those punishments prohibited by the Fifth, Eighth, and Fourteenth Amendments of the Constitution. The statute further provides that the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment shall be determinative of which punishments proscribed by those constitutional provisions are within the reach of the statute.

35
. 494 U.S. 259 (1990).

36
. Ibid., 273 (“The United States frequently employs armed forces outside this country—over 200 times in our history—for the protection of American citizens or national security. Congressional Research Service, Instances of Use of United States Armed Forces Abroad, 1798–1989 [E. Collier ed. 1989]. Application of the Fourth Amendment to those circumstances could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest.”)

37
. Ibid., 284 (Brennan, J., dissenting).

38
. Ibid., 285 (Brennan, J., dissenting).

39
. See generally Reid v. Covert, 354 U.S. 1 (1957).

40
. Downs v. Bidwell, 182 U.S. 244 (1901) (Harlan, J., dissenting). See generally
Owen Fiss, “The Troubled Beginnings of the Modern State, 1888–1910,” in
The Oliver Wendell Holmes Devise, History of the Supreme Court,
vol. 8, ed. Stanley Katz (New York: Macmillan, 1993), 225–56.

41
.
Verdugo-Urquidez,
494 U.S. at 275.

42
. But see Thomas Nagel, “The Problem of Global Justice,”
Philosophy and Public Affairs
33 (2005): 113, 121 (discussing “the political conception of justice, which asserts that “justice is something we owe through our shared institutions only to those with whom we stand in a strong political relation”).

43
. See Gerald L. Neuman,
Strangers to the Constitution: Immigrants, Borders, and Fundamental Law
(Princeton, NJ: Princeton University Press, 1996), 54–56 (discussing
The Federalist
’s argument that aliens have no constitutional rights as they are not parties to the Constitution).

44
.
Verdugo-Urquidez,
494 U.S. at 275 (Kennedy, J., concurring).

45
. Ibid., 276 (Kennedy, J., concurring).

46
. Ibid., 278 (Kennedy, J., concurring).

47
. Ibid., 277 (Kennedy, J., concurring).

48
. Rasul v. Bush, 542 U.S. at 487 (Kennedy, J., concurring).

49
. Ibid., 488 (Kennedy, J., concurring).

50
. Ibid.

Chapter 3: The Perils of Minimalism

This chapter is based on the first annual Cegla Lecture on Legal Theory, delivered at Tel Aviv University on October 24, 2007. It was later published under the same title in
Theoretical Inquiries in Law
9 (2008), 643–64.

1
. See, e.g., HCJ 769/02 Pub. Comm. against Torture in Israel v. Gov’t of Israel [December 11, 2006].

2
. United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).

3
.
Verdugo-Urquidez,
494 U.S. at 277-78 (Kennedy, J., concurring).

4
. See, e.g., Cass Sunstein,
Radicals in Robes
(New York: Basic Books, 2005); Cass Sunstein,
One Case at a Time: Judicial Minimalism on the Supreme Court
(Cambridge, MA: Harvard University Press, 2001); Cass Sunstein, “Minimalism Versus Perfectionism in Constitutional Theory: Second-Order Perfectionism,”
Fordham Law Review
75 (2007): 2867–83; Cass Sunstein, “Testing Minimalism: A Reply,”
Michigan Law Review
104 (2005): 129–35; Michael C. Dorf, “Legal Indeterminacy and Institutional Design,”
New York University Law Review
78 (2003), 875–981.

5
. The federal habeas statute provides that “writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” 28 U.S.C. § 2241(a) (2000).

6
. 542 U.S. 466 (2004).

7
. Al Odah v. United States, 321 F.3d 1134, 1141 (D.C. Cir. 2003).

8
. Memorandum from Paul Wolfowitz, Deputy Secretary of Defense, to the Secretary of the Navy, July 7, 2004, available at
www.defenselink.mil/news/Jul2004/d20040707review.pdf
.

9
. 542 U.S. 507 (2004).

10
. Detainee Treatment Act of 2005, Pub. L. No. 109-148, div. A, tit. X, § 1005(e)(1), 119 Stat. 2680, 2742 (the specific provision quoted in the text was codified at 28 U.S.C. § 2241(e)(1) [2000], and was subsequently amended in 2006).

11
. 548 U.S. 557 (2006).

12
. Detainee Treatment Act, div. A, tit. X, § 1005(h)(1) (codified at 10 U.S.C.A. § 801 note [2000]).

13
. Ibid., § 1005(h)(2) (codified at 10 U.S.C.A. § 801 note [2000]).

14
.
Hamdan,
548 U.S. at 612–13.

15
. 10 U.S.C. § 821 (amended 2006).

16
. Ibid., § 836(b) (amended 2006).

17
.
Hamdan,
548 U.S. at 612.

18
. Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, art. 3, 6 U.S.T. 3316, 75 U.N.T.S. 135.

19
. See, e.g., Oona Hathaway, “
Hamdan v. Rumsfeld:
Domestic Enforcement of International Law,” in
International Law Stories,
ed. John Noyes, Mark Janis, and Laura Dickinson (New York: Foundation Press, 2007): 229, 253; David Scheffer, “
Hamdan v. Rumsfeld:
The Supreme Court Affirms International Law,”
Jurist,
June 30, 2006,
jurist.org/forum/2006/06/hamdan-v-rumsfeld-supreme-court.php
.

20
. Military Commissions Act of 2006, Pub. L. No. 109-336, § 7(b), 120 Stat. 2600, 2636. The act also extended the geographic scope of the bar against habeas petitions by prisoners so that the bar applies to all non-U.S. citizens that the government determines to be illegal enemy combatants, regardless of where the government is holding them. Ibid., § 7(a).

21
. For example, the Military Commissions Act requires judges to exclude evidence if its prejudicial value substantially outweighs its probative value. The act also requires that prosecutors give notice of and an opportunity to rebut hearsay evidence before they are permitted to use it. C.f. Military Commissions Act § 949a(b)(2), with United States Department of Defense, Military Commission Order No. 1, March 21, 2002, available at
www.defenselink.mil/news/Mar2002/d20020321ord.pdf
.

22
. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).

23
. Ibid., 987.

24
. Ibid., 992.

25
. Linda Greenhouse, “The Mystery of Guantánamo Bay,”
Berkeley Journal of International Law
27, no. 1 (2009): 1–21.

26
.
Hamdan,
548 U.S. at 636 (2006) (Breyer, J., concurring).

27
. See Stephen Breyer,
Active Liberty
(New York: Knopf, 2005).

28
. Sunstein,
One Case at a Time.

29
.
Hamdan,
548 U.S. at 636 (Breyer, J., concurring).

30
. See Neil S. Siegel, “A Theory in Search of a Court, and Itself: Judicial Minimalism at the Supreme Court Bar,”
Michigan Law Review
103 (2005): 1951, 1963–64.

31
. Rasul v. Bush, 542 U.S. 466, 486 (2004) (Kennedy, J., concurring).

32
. Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005),
rev’d,
548 U.S. 557 (2006).

33
. 274 U.S. 357, 372–80 (1927) (Brandeis, J., concurring).

Chapter 4: Aberrations No More

This chapter is based on the William H. Leary Lecture at the University of Utah’s S. J. Quinney College of Law, delivered on October 26, 2010. It was later published under the same title in the
Utah Law Review
2010 (2010): 1085–99.

1
. Jane Mayer, “Outsourcing Torture: The Secret History of America’s ‘Extraordinary Rendition’ Program,”
New Yorker,
February 14, 2005, 106, 106–23,
www.newyorker.com/archive/2005/02/14/050214fa_fact6
.

2
. Padilla
ex rel.
Newman v. Bush, 233 F. Supp. 2d 564, 572, 605–9 (S.D.N.Y. 2002). For further developments in this case, see chapter 2, “The War on Terror and the Rule of Law.”

3
. Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 3 C.F.R. § 918 (2002), reprinted in 10 U.S.C. § 801 (Supp. IV 2004).

4
.
Ex parte
Quirin, 317 U.S. 1 (1942). For background on the case, see Louis Fisher, “Military Tribunals: The
Quirin
Precedent,” Congressional Research Service, RL 31340, March 26, 2002.

5
. Military Order of November 13, 2001, sec. 4.

6
. U.S. Department of Justice, “Legal Authorities Supporting the Activities of the National Security Agency Described by the President,” January 19, 2006, 1–3,
www.justice.gov/opa/whitepaperonnsalegalauthorities.pdf
.

7
. Katz v. United States, 389 U.S. 347, 358 n. 23 (1967).