LAW FROM THE CENTER

Yesterday, the Attorney General filed a brief (from SCOTUSblog) in Rasul v. US, the consolidated cases challenging the legality of alien detention in Guantanomo Bay. The key issue for review at the Supreme Court level is whether the judicial branch has the power at all to review this type of claim. The government cites Johnson v. Eisentrager, 339 US 763 (1950), as authority. That case was about a habeus petition from German nationals seized after World War II, tried in war crimes tribunals, and imprisoned in a US-controlled facility in Germany. The court held there that neither Title 28 of the US Code, nor the Federal Constitution, granted courts the jurisdiction to hear these types of cases.

ANALYSIS: The AG's precedential argument is hard to evade. The Eisentrager case seems to be clearly on point, and most of the petitioner's legal arguments try to distinguish from this on-point authority instead of offering their own. In that case, they were foreign nationals; in this case, they are foreign nationals. In that one, the petitioners were held on foreign soil; in this one, they are on foreign soil. In that one, they were being held on a base that, while under US control, was under German sovereignty; the same goes for the instant case. In almost every relevant aspect, the two cases are the same, and any distinguishing argument is weak at best.

THE PROBLEM comes when the government tries to justify retaining this 54-year old precedent from another era and another crisis. The government's policy arguments seem very underdeveloped. The government raises two main policy points: that (1) allowing courts jurisdiction would give them too much power in foreign affairs, and (2) the detainees can get enough protection from the legislature and the executive branch.

The foreign affairs argument is the most compelling. Time and time again the Court has said that the executive is at its greater power when dealing with matters of national security. However, that right is not absolute, as we saw in the Pentagon Papers case. These claims seem very meritless; that is, if a court did hear them, it is unclear what law at all the detainees could point to that would grant them relief. They have no Geneva Conventions rights, since they were not fighting lawfully (wearing recognized uniforms, acting under the authority of a soveriegn state, etc.) Moreover, since they are not US citizens, and are not on US soil (this is the key part), they have no constitutional criminal procedure protections. And, it appears that the government is complying with SUBSTANTIVE (but not procedural) human rights standards (food, sunlight, religious activity, cleanliness, health care, etc.) Therefore, since Rasul and his folk are extremely unlikely to ever be granted relief, the government seems to have nothing to lose national security wise by having the cases heard. The main fear is that something important will slip out in court proceedings. But federal courts have special procedures to deal with classified evidence. The gov't prosecutes espionage cases dealing with highly sensitive material all the time.

The second policy point the government makes seems underdeveloped. The AG claims that the legislature and executive are in a position to protect the rights of detainees. Any court, even the most conservative one, should balk at this kind of argument. Courts have traditionally acted as a countermajoritarian influence, against both liberal and conservative popular action.

These are weak policy arguments, and I think the government would have done better to concentrate on separation of powers arguments. Bringing the argument down to the specific crisis level plays into the hands of the other side. By staying above the frey and simply emphasizing the executive's traditional role of exclusively dealing with the details of war prosecution, the government may have had a more persuasive argument.