Guantanamo and the conflict of laws: Rasul and beyond.

• Author: Roosevelt, III, Kermit
• Position: Application of the Constitution to Guantanamo Bay

Of the legal issues raised by the Bush Administration's conduct of the war on terror, the detention of alleged "enemy combatants" presents perhaps the starkest conflict between individual liberty and executive authority. The Executive has claimed the power to designate individuals as enemy combatants and thereafter to hold them indefinitely without judicial review or access to counsel. A triad of cases decided by the Supreme Court in its October 2003 Term put this claim to the test and generally rejected it. (1)

Two cases dealt with Americans confined in the Navy brig in Charleston, South Carolina. Yaser Hamdi, allegedly captured on the field of battle in Afghanistan, was held entitled as a matter of Fifth Amendment Due Process to "a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker," and to the assistance of counsel in that proceeding. (2) The claims of Jose Padilla, arrested in Chicago and detained initially in New York before transport to the Charleston brig, received a slightly less welcoming reception: over the dissent of four Justices, the Court held that his habeas petition was improperly filed in the Southern District of New York and ordered its dismissal. (3) Padilla will, however, be able to take advantage of the same rights as Hamdi upon refiling in South Carolina.

No such confident prediction can be made with respect to the further proceedings contemplated by the Court's opinion in the third case, Rasul v. Bush. (4) There, the Justices affirmed that citizens of friendly countries confined in the U.S. naval base at Guantanamo Bay could challenge their detention by filing habeas petitions. (5) Petitioners' counsel urged the Court to resolve only this preliminary question, and the Court accepted the invitation. (6) The result was a decision that rejected the Executive's claim to complete freedom from judicial scrutiny but left unclear precisely what rights the petitioners have that might be vindicated by a habeas petition. (7)

Rasul is thus a victory for the rule of law, but one whose magnitude has yet to be determined. My aim in this Article is to offer some speculation about the question the Court left unanswered, and in particular to do so from the perspective of conflict of laws. The Court has not always understood extraterritorial application of American law to present a conflicts issue, but I hope to show that taking this perspective will allow us a clearer understanding of that difficult question. Equally important, bringing conflicts theory to bear on extraterritoriality will reflect light back on the theory, offering some lessons that can be applied to conflicts more generally.

Part I of the Article discusses the Rasul decision in detail, considering it in the context of both the other detention cases and the Court's most recent decisions about the extraterritorial scope of American law. It concludes that Rasul is most plausibly read to imply that the Constitution extends rights to the Guantanamo detainees. (8) Part II describes the reasons why this extension is surprising; it traces the development of the Court's extraterritoriality jurisprudence, from the early territorialist dogma to the more recent expansions. Part III turns from doctrine to theory, exploring the various arguments for and against extraterritoriality immanent in the case law and urged by scholars. It asserts that these theories have less resolving power than is commonly supposed; most, in fact, beg the question. Part IV explicitly invokes the methodology of conflicts. Though this methodology does not give a clear answer either, its application does frame the question in a more analytically tractable manner. This Part also argues that the exercise of applying conflicts methodology sheds some light on conflicts itself; having reformed our approach to conflicts in response, we are left in a better position to tackle the question of the extraterritorial scope of the Constitution. Part V returns to the case of Guantanamo, applying the methodology derived in the preceding part to the Due Process Clause.

1. EXECUTIVE DETENTION AND EXTRATERRITORIALITY IN OT 2003

   The Rasul petitioners are two Australians and twelve Kuwaitis captured in Afghanistan and Pakistan and subsequently transferred to Guantanamo Bay, where they were confined without charges or access to counsel. (9) According to their petitions, all were engaged in innocent conduct such as providing humanitarian aid, visiting relatives, or arranging marriage. (10) They were arrested by various local authorities and turned over to U.S. forces, in some cases in exchange for bounties. (11) Through various next friends, they sought to invoke federal jurisdiction to review the legality of their confinement.

   The district court dismissed the petitions for lack of subject matter jurisdiction, and the D.C. Circuit affirmed. (12) Like the district court, the D.C. Circuit relied on Johnson v. Eisentrager, (13) in which the Supreme Court rejected the habeas petitions of German nationals confined in the Landsberg prison in Germany following convictions by military tribunals in China. (14) The D.C. Circuit read Eisentrager, as glossed by later Supreme Court decisions, to establish that the U.S. Constitution offered aliens abroad no protection against the U.S. government. (15) If the Constitution gave such people no rights, the D.C. Circuit reasoned, "[w]e cannot see why, or how, the writ [of habeas corpus] may be made available." (16)

   Given the initial premise that the Constitution is territorial in scope, at least as to aliens, the D.C. Circuit's reasoning makes some sense. To permit the filing of a habeas petition alleging violations of constitutional rights when the court has already determined that the petitioner has no constitutional rights that could be violated is a charade at best pointless, and more likely cruel. (17) The most surprising feature of the Supreme Court's decision in Rasul, then, may be that the Court found a way to reverse the D.C. Circuit without contesting the territorialist premise. (18) Understanding how the Court managed to do so requires a bit of a detour into pre- and post-Eisentrager habeas jurisprudence, as well as a more thorough discussion of Eisentrager itself.

   1. Eisentrager, Ahrens, and Braden

      Eisentrager, the Rasul majority observed, was decided under the regime of Ahrens v. Clarke. (19) The habeas statute, 28 U.S.C. § 2241, then (as now) authorized federal courts to issue writs of habeas corpus "within their respective jurisdictions." (20) Ahrens interpreted this language to require, as a jurisdictional matter, that a habeas petitioner applying to a district court be confined within that district. (21) Thus, district courts under the Ahrens regime had the power to issue writs of habeas corpus at the application only of petitioners confined within their district. Correlatively, prisoners could file petitions only with the district court within whose district they were confined. What this meant for prisoners confined outside the borders of any federal judicial district, the Ahrens Court declined to decide, (22) though (as the dissent pointed out) if the limitation were truly jurisdictional, no special circumstances could remedy the absence of judicial power. (23) Such people would have no means of seeking habeas relief, regardless of the legality of their confinement.

      This categorical restriction on the availability of habeas relief would seem to raise serious questions under the Suspension Clause, (24) and it was that constitutional doubt that drove the D.C. Circuit's analysis in Eisentrager. The D.C. Circuit (in an interesting counterpoint to its approach in Al Odah) started with the premise that "constitutional prohibitions apply directly to acts of Government, or Government officials, and are not conditioned upon persons or territory." (25) In consequence, "any person who is deprived of his liberty by officials of the United States, acting under purported authority of that Government," (26) could invoke due process rights under the Fifth Amendment, and the right to habeas corpus as a means of vindicating those rights could not be defeated "by an omission in a federal jurisdictional statute." (27)

      While apparently conceding that the habeas statute, as interpreted in Ahrens, contained just such an omission, the D.C. Circuit also stated that the statute must be construed to make habeas jurisdiction "coextensive with executive power, at least in so far as prisoners in jail are concerned." (28) Finding statutory jurisdiction present "by compulsion of the Constitution itself," the D.C. Circuit directed the district court to resolve the merits of the petitions. (29)

      The Supreme Court reversed, in an opinion striking for its lack of clarity. The Court noted what it took to be the salient facts about Eisentrager's status:

      [Eisentrager] (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States. (30) Without explaining the precise significance of these factors to its various lines of reasoning, the Court then went on to suggest that the petitioners (a) simply lacked standing to litigate in U.S. courts, regardless of what substantive rights they might have; (31) (b) possessed no Fifth Amendment rights; (32) and (c) had failed to state a claim on the merits. (33) With respect to the question of the scope of the habeas statute, the Court made only a few dismissive remarks. It noted that nothing "in our statutes" conferred upon petitioners a right to the habeas writ, and it observed that as the petitioners had failed to present a "basis for invoking federal...