INTRODUCTION 641 I. CURRENT FRAMEWORKS FOR DUE PROCESS DURING WAR 644 A. Doctrinal: The Supreme Court's Ad Hoc Approach 645 B. Historical 647 1. The War Powers Exception Framework 647 2. The Reciprocity Framework 651 II. Two CONCEPTIONS OF DUE PROCESS 654 A. Distinguishing the Rule of Law and Judicial Procedure Requirements of Chapter 29 of Magna Carta 654 B. Rereading Blackstone on the Law of the Land 656 III. THE ENGLISH BACKGROUND 659 A. The Law of War as the Law of the Land 659 1. The Law of Nations 659 2. The Law of War 663 B. The Two Faces of "Martial Law" 668 C. The Judicial Procedures for Enforcing the Law of the Land During War, 670 1. Habeas Corpus 671 2. Prize Cases 672 3. Suits Against Officers 672 IV. THE U.S. CONSTITUTION 673 A. The American War of Independence 674 B. Rereading the U.S. Constitution 677 1. Congress Versus the President 678 2. Congress 682 3. The President 683 4. The Federal Courts 684 5. Constitutional Limits with Exceptions for War 685 a. The Suspension Clause 685 b. The Third Amendment 686 6. The Constitution and the Customary Law of Nations 687 C. The Due Process Clause 688 V. EARLY IMPLEMENTATION 691 A. The Neutrality Controversy of 1793-94 691 B. Warev. Hylton 693 C. The Alien Acts of 1798 696 1. Congressional Debate over the Alien Enemy Act 696 2. Debates over the Alien Friends Act 697 3. Habeas Corpus for Enemy Aliens 699 D. Prize Cases 701 E. Martial Law in New Orleans 703 VI. PRINCIPLES FOR THE "WAR ON TERRORISM" 704 CONCLUSION 707 INTRODUCTION
The application of the Due Process Clause of the Fifth Amendment during war is one of the most important, challenging, and debated questions in American constitutional law. Unfortunately, the Supreme Court has not provided a consistent or coherent analytical framework. In Hamdi v. Rumsfeld, the Court's most recent case to directly address the issue, a plurality applied the Mathews v. Eldridge balancing test to determine the "process of law" that was "due" to a U.S. citizen detained in the United States as a terrorist. (1) In Boumediene v. Bush, the Court held that the privilege of habeas corpus extends to enemy aliens detained as terrorists at a U.S. base in Cuba. (2) This ad hoc approach has provided little guidance to the executive or lower courts, and the guidance it has provided is pernicious.
Consider the government's approach to targeted killings. When President Obama announced that he believed the Due Process Clause applied to the targeting of a U.S. citizen suspected of terrorism, (3) the Department of Justice (DOJ) analyzed the constitutional question according to the plurality's decision in Hamdi. After concluding that the Due Process Clause may apply to such a killing, the DOJ dutifully applied the Mathews balancing test to conclude that the executive department's internal checks and balances provide the "process of law" to which a target is "due." (4) The notion that the Due Process Clause's procedural due process requirement is satisfied without any judicial process threatens to dilute its protection across the board. (5)
The scholarly responses to the DOJ's analysis illustrate the lack of consensus--or theory, even--about how the Due Process Clause ought to apply during war. Some scholars argued that the Due Process Clause does not apply to the exercise of war powers; others took no position on whether the Clause might apply during war but agreed with the government that it had satisfied whatever the Clause might require. Some argued that the Clause required post-hoc judicial review of a targeted killing, and others that it required judicial review before the killing. (6)
The most thorough, historically informed approach to rights during wartime has focused on the principle of reciprocal duties arising from the law of nations and the common law. A subject owes a duty of loyalty to a sovereign; in return the sovereign owes that subject the protection of the laws. According to Philip Hamburger, resident enemy aliens were not traditionally understood to be "subjects" entitled to the protection of the law. (7) Enemy aliens anywhere, and nonresident aliens outside the United States, enjoy no constitutional rights. While this framework is based on an important principle of the common law that informed the way American jurists conceived of rights, the categories it proposes are not supported by the text of the U.S. Constitution or the way that American jurists implemented it during the early republic. (8)
This Article proposes a different framework. Based on the English background, the text of the Constitution, and early American debates and judicial decisions, it argues that Americans understood all deprivations of rights during war to be subject to the law of the land. Many, but not all, of those deprivations were also subject to due process. The detention of prisoners of war and the deprivations of rights on a batdefield and pursuant to a lawful declaration of martial law were subject to the law of the land, but not to due process. All other deprivations of rights that fell within the jurisdiction of the courts were subject to judicial review--even during war. This was due process of war.
The key to grasping the due process implications of early American discussions of law, war, and rights is to unpack the concept of "due process of law" within Anglo-American constitutionalism. Americans equated due process with the traditional requirements of the "law of the land" clause of Chapter 29 of Magna Carta. In English law, the "law of the land/due process" requirement merged two concepts that were conceptually distinguishable: the requirement that deprivations of rights be according to law, and the requirement that they be subject to judicial procedures. In most cases, these concepts overlapped. The government could only deprive someone of a right according to lawful authority, while a court stood ready to enforce the law. Writs of habeas corpus and prohibition and damages suits against officers were routine judicial procedures for meeting the requirements of Chapter 29 of Magna Carta. Americans inherited this understanding of "law of the land/due process."
War introduced a wrinkle. English and American jurists agreed that deprivations of life, liberty, and property during war were subject to the law of the land. Under the law of nations, war changed many individual rights and duties. England had adopted the law of nations as part of the law of the land. Moreover, many governmental deprivations of life, liberty, and property during war were governed by statute, the common law, or royal proclamation. In England, and later in the United States, the deprivation of rights during war was therefore subject to the law of the land. In this respect, Chapter 29 of Magna Carta applied to deprivations of rights during war.
The due process, or judicial procedure, component of Chapter 29 of Magna Carta, however, applied to only some deprivations of rights during war, and the government enjoyed more leeway to restrict those procedures during war. Courts continued to supply habeas corpus, including to enemy aliens, but Parliament could suspend habeas for limited periods during war. Prize courts supplied elaborate civil-law procedures to enemy aliens and neutrals in prize cases. And officers remained subject to suit for trespass.
Yet many deprivations of life, liberty, and property during war, though subject to the law of the land, were not subject to due process. The deprivation of rights on the battlefield or pursuant to a lawful declaration of martial law or the suspension of habeas corpus were not subject to judicial review. Prisoners of war (POWs) were not entitled to habeas, but those detained as POWs could use habeas to challenge their status.
Americans inherited and amplified the English tradition of ensuring that deprivations of rights during war were subject to the law of the land. The U.S. Constitution gives all of the federal government's power to change rights during war to Congress, ensuring that the definition and authority to deprive persons of those rights would be according to law. The Constitution permits the government to suspend habeas and to authorize the quartering of soldiers but only upon certain limited conditions. The nation has all the powers necessary to implement its rights of war under the law of nations pursuant to its own municipal law, subject in many cases to ordinary judicial procedures.
Early debates and judicial decisions by many of the luminaries of the early republic confirm that Americans believed that although war changed the rights of citizens, enemies, and neutrals, the deprivation of those rights were still subject to the law of the land, and often to judicial procedures. Though Americans rarely expressly considered the application of the Due Process Clause per se during war, they frequently considered the relationship between war, individual rights, and the law of the land. John Jay, John Marshall, James Iredell, James Madison, Alexander Hamilton, and Albert Gallatin all maintained that deprivations of rights during war were subject to the law of the land--many of them tacitly or expressly holding that resident enemy aliens, in particular, were entitled to habeas and postwar suits (at least) to enforce their rights to liberty and property during war.
The sum of the historical evidence suggests a fresh framework for analyzing the application of due process during war. A juridical state of war authorizes the government to change the rights of citizens, subjects, and neutrals under U.S. law. In particular, Congress may authorize the deprivation of rights of armed enemies on the battlefield, the detention of POWs, and the deprivation of rights within the United States pursuant to martial law--all without judicial review. Those deprivations would be subject to the law of the land but not to the Due Process Clause. (9)
Many deprivations of rights during war would be subject to due...