Doctrines without borders: territorial jurisdiction and the force of international law in the wake of Rasul v. Bush.

• Author: Brooks, Brennan Tyler

ABSTRACT

Following the attacks of September 11, 2001, the United States responded with military action aimed at eradicating terrorist networks around the world. The action in Afghanistan resulted in several hundred captured enemy combatants being sent to the U.S. naval base at Guantanamo Bay, Cuba. Because the base is not within the territory of the United States, the Bush administration took the position that the detainees could be held indefinitely without review in civilian courts. In a surprising move, the U.S. Supreme Court held that the detainees did have a right to petition civilian courts for habeas corpus review. Thus, the habeas statute was given extraterritorial application by the Court. That decision opened the federal judiciary to these terror suspects and did so in a way that lacks clarity and that could conceivably authorize habeas review of any detention undertaken by the U.S. government anywhere in the world. In November 2005, Congress took steps to curtail the right of detainees at Guantanamo Bay to obtain habeas review, but this move did not address all of the potential sources for confusion, and in some respects the recent action of Congress has added even more ambiguity to the law. Insofar as this has the potential to greatly complicate the war on terror, Congress must consider exercising its authority to amend the habeas corpus statute further than it already has and thereby address the questions that persist.

TABLE OF CONTENTS I. INTRODUCTION: WHAT IS "JUSTICE" IN THE WAR ON TERROR? II. BACKGROUND CASES A. Ahrens v. Clark B. Johnson v. Eisentrager C. Braden v. 30th Judicial Circuit Court of Kentucky D. Rasul v. Bush: Action in the Lower Courts III. RASUL V. BUSHAT THE SUPREME COURT A. The Majority Opinion B. Justice Kennedy's Concurrence IV. RASUL V. BUSH--THE DISSENTING ANALYSIS OF THE COURT RATIONALE A. Justice Scalia's Dissent 1. The Court Fails to Give Due Weight to the Text of [section] 2241 which Obviously Requires Territorial Jurisdiction over the Petitioner 2. Eisentrager is Directly on Point and Should Apply 3. The Court Misappropriates Braden 4. The Court's Description of the Guantanamo Facility is Baseless 5. The Court Misinterprets the History of the Writ 6. Conclusion B. Parallel Paths and the Roads Not Taken V. DEVELOPMENTS SUBSEQUENT TO RASUL AND RECOMMENDATION A. Dealing with the "Breathtaking" Impact B. Congressional Power after Rasul 1. The Graham-Levin Amendment on Guantanamo 2. A Focus on the Jurisdiction of U.S. Courts 3. The International Law Question C. Applying Rasul: Some Early Guidance and Potential Dangers 1. Hamdan's Narrow Application of Rasul 2. The Court's Open Door Policy 3. Recommendation: Consider the Entire Context when Deciding Hamdan VI. CONCLUSION Nam cetera malificia tum persequare, ubi facta sunt; hoc, nisi provideris, ne accidat, ubi evenit, frustra iudicia inplores: capta urbe nihil fit reliqui victis.

Sallust, Bellum Catilinae 52:4-5

1. INTRODUCTION: WHAT IS "JUSTICE" IN THE WAR ON TERROR?

   On September 20, 2001, shortly after the U.S. government determined that Osama bin Laden and al-Qaeda were responsible for the 9/11 terrorist attacks, President George W. Bush addressed a joint session of Congress. (1) Articulating a new doctrine in foreign policy, (2) he issued the following warning: "[A]ny nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime." (3) The goal of this doctrine, which makes host nations responsible for the actions of the terrorists they harbor, was and remains the eradication of terrorist safe havens. (4) Indeed, both the "Bush Doctrine" and the war on terror are intended to "starve terrorists of funding, turn them one against another, [and] drive them from place to place, until there is no refuge or no rest." (5)

   During his September 20th address, the President demanded of the Taliban (6) that they "close immediately and permanently every terrorist training camp in Afghanistan, and hand over every terrorist, and every person in their support structure, to appropriate authorities." (7) Similarly, the U.K. Prime Minister Tony Blair, a defender of the Bush Doctrine, (8) described the objectives of the coalition as follows: "to close down the al-Qaeda network, bring UBL and his associates to justice, and because the Taliban regime have chosen to side with al-Qaeda, to remove them." (9) Both leaders, however, were often vague in describing how they envisioned administering "justice" against individual terrorists and the extent to which any formal judicial processes would be employed. (10) Once announced, the Bush administration's plans for detaining, interrogating, and punishing suspected terrorists met strong criticism from some quarters. (11) This presaged the legal difficulties to come.

   To support the President's efforts in the war on terror, the U.S. Congress passed a broad authorization for the use of force against "those nations, organizations, and persons [the President] determines planned, authorized, committed, or aided the terrorist attacks ... or harbored such organizations or persons." (12) When the President's demands were not met, the United States undertook military action designed explicitly to treat the recalcitrant Taliban regime as one with the terrorists it harbored. (13) As a consequence of this military campaign, a large number of illegal enemy combatants came within the custody of the U.S. military. (14) Originally, the United States transported roughly 600 of these suspected terrorists to the U.S. Navy's facility at Guantanamo Bay, Cuba. (15)

   Under the Bush administration's policy, an enemy combatant received multiple evaluations by the military. (16) First, upon capturing an individual suspected of being a terrorist, the commander in the field would assess the suspect based upon available evidence. (17) If the commander believed that the individual was "part of or supporting forces hostile to the United States or coalition partners, and engaged in an armed conflict against the United States" the suspect was detained for further review. (18) If not released at this stage of the process, the individual was then "sent to a centralized holding in the area of operations" for review by a "military screening team." (19) A general officer reviewed the work of the screening team, and the Department of Defense would review this report if the general officer recommended that the suspect be sent to Guantanamo. (20) Finally, upon the detainee's arrival at the base, additional evaluations would occur, including review by "the Secretary of Defense or his designee." (21)

   Combatant Status Review Tribunals were made formally responsible for reviewing each detainee at Guantanamo to determine whether the detainee should be held there. (22) Furthermore, particularized annual reviews are conducted to evaluate the need for continued detention of each detainee; factors considered include the level of threat presented by the individual as well as potential intelligence value. (23) These reviews are to be distinguished from actual military commissions whose task is to try those non-citizens selected for war crimes prosecution. (24) To the dismay of many, (25) the Bush administration's plan did not provide for scrutiny by the judiciary at any time prior to actual prosecutorial action before a military commission. (26) The Administration instead took the position that, since these fighters were not prisoners of war, the full protections of the Geneva Conventions did not apply to their detention and treatment. (27) Moreover, because the war on terror is not a traditional conflict among states, it is not possible to look forward to a formal cessation of hostilities. This therefore raised the possibility of perpetual detention, a possibility that has become a source of great consternation to many in the field of international law. (28)

   Although the Administration had stated from the outset that a detainee convicted by a military tribunal would be able to challenge his conviction in a federal civilian court, the fact of detention alone would not itself trigger the right to have judicial review--at least that was the Administration's interpretation of the law. (29) Indeed, attempts by detainees to seek the benefit of judicial review by an Article III court were initially unsuccessful. (30) The federal government's process met an unanticipated difficulty, however, when Rasul v. Bush, (31) an appeal from a denial of a writ of habeas corpus under the federal habeas statute, (32) reached the U.S. Supreme Court. (33) Ruling against the U.S. government's position, the Court held that the detainees did have a right under the federal habeas corpus statute to petition U.S. civilian courts for review of their detentions. (34) While a majority of the Court determined that "the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention" (35) of the detainees at Guantanamo Bay, Justice Scalia penned a vigorous dissent, which characterized the Court's ruling as "an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field." (36) One area that Justice Scalia found particularly egregious was the fact that the Court's decision "extends to aliens detained by the United States military, outside the sovereign borders of the United States and beyond the territorial jurisdiction of all its courts." (37) In sum, the dissent was especially troubled by what it viewed as a new extraterritoriality in the jurisdictional power of U.S. courts to grant a writ of habeas corpus under 28 U.S.C. [section] 2241. (38)

   Part II of this Note will review the major precedents that shaped the legal framework before Rasul. It will focus primarily on the World War II-era case of Johnson v. Eisentrager, (39) a case which the dissent in Rasul argued should control. (40) Part III will shift to discuss the...