Habeas CorpusSuspension Of Habeas Corpus | The Lost Chapter

Suspension of Habeas Corpus – In this article, I will explain the critical facts of the history in the war era when the protection of the individuals are ripped off.

History is the witness of such infringement of the fundamental rights.

In order to explain the facts,

Let me tell you the overview of this article.

What are the examples of habeas corpus suspension?

Lincoln’s suspension of habeas corpus

Suspension of habeas corpus after 9/11?

Suspension of habeas corpus during civil war?

Was habeas corpus suspended during WWI?

Was habeas corpus suspended during WWII?

Habeas Corpus and Guantanamo Bay

Different historical cases of Habeas Corpus.

Parliament is trying to do things by the book and they’re trying to have this formal legal structure in place the Habeas Corpus Act is in effect except for win temporarily suspended. 

And when the suspensions lapse you see droves of prisoners being released in habeas proceedings because the idea was you charge them and try them in due course or they will be freed under the Act.

And so that’s the model that emerges.

It is true that Parliament has a few other workarounds, the principal one of which is passing bills of attainder.

SUSPENSION OF HABEAS CORPUS:

So just a famous case detailed in the book of a guy named John Bernardi who may or may not have been involved in a plot to kidnap the king and kill the king in 1696 and they didn’t have enough evidence to convict him. 

So he’s originally taken in under the auspices of a suspension but when the suspension lapses he’s going to win his freedom.

Writ of Habeas Corpus Bill of attainder

Parliament passes a bill of attainder to keep him in prison just walk us through what a bill of attainder. 

A writ of habeas corpus is the same as a bill of attainder.

Well, so it’s a law that Parliament judges him guilty effectively on its own without a trial. 

It’s very convenient and what’s remarkable about this beyond his story and how it connects to American law is that the bill of attainder Clause is next to the suspension clause. 

So the bit just for those of you who haven’t read your constitutions recently, the Constitution bans bills of attainder. 

So very important and it also prevents the suspension of habeas corpus using the word suspension except when in circumstances of invasion or insurrection it’s required by public safety.

So what’s interesting about this period is that Parliament is taking this power away from the crown and is still trying to operate within the laws that understands it and to do things formally in that way. 

All right, now we come across the Atlantic and when you read this history and you read the text of the Constitution for the reasons that I just said and the relationship between this history and the text of the Constitution is clear. 

The rule as the founding generation and up through the Civil War generation would have understood habeas is what the bill of attainder is not available.

Must Read:

History of Habeas Corpus

Concept of Habeas Corpus

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Suspension of Habeas Corpus in American History

So what is the rule as they would have understood habeas corpus? 

The rule is derived straight out of this English legal model in particular, what we see during the American Revolution when we have suspensions in the states that suspend the English or suspend the English Habeas Corpus Act in many cases by its terms.

1. The rule that we see when George Washington is President and confronts the whiskey rebellion.
2. The rule that we see when Jefferson is president and it’s confronting the  conspiracy. 
3. The rule that we see even through the Civil War with some asterisks is that you cannot arrest and hold someone who can claim the protection of domestic law. 
4. Someone who is deemed 200 Allegiance outside the criminal framework for national security or criminal purposes in the absence of a valid suspension. 
5. That’s the rule and it’s a very formalist rule that’s why people today don’t like it. 

That’s why I think there’s a drive to look at a looser sort of due process idea. 

I’m sure we’ll talk about that as we continue talking but that was the rule and there are  exceptions to the rule. 

So the only exception that was debated was who gets to declare a suspension of habeas corpus in the US and that’s obviously the big issue of the Civil War. 

But importantly as the British viewed the Americans during the American Revolution history.

Lincoln and the Union viewed the Confederates during the Civil War as people who owed allegiance. 

They were not in the service of a foreign enemy and that meant that Confederate soldiers (same as American rebels) during the American Revolution could claim all of these protections. 

And that meant you needed a suspension to hold these people outside the criminal process.

So let’s talk about some exceptions that are present but not present. 

So one is that the strictures of what could count as a valid criminal law were dramatically looser than right so you could. 

For example, if you were in the 1790s lock up.

All the  Republican printers on substantive grounds without suspending habeas corpus just by passing the alien Sedition Acts and locking them up.

Similarly the Logan Act is now much in vogue. 

When you look at the Logan Act, it’s passed roughly in the same period. 

What the elements of the offense are would not stand  scrutiny of a modern statute. 

So how much of the alleviation of the rigor of the rule that you’re describing lies in just Congress passing vague laws and enforcing them against the sort of people that you would want to lock up without charge. 

So you just have these vague statutes that you can kind of apply to almost anybody you. 

Don’t you really? 

The president doesn’t like and then the problem that this very strict understanding of habeas would create kind of goes away. 

So there are strands of that story in this history of the United States during the Civil War.

It’s no great secret that the First Amendment wasn’t exactly robust and speeches got you in trouble but when you look at various periods in American history, early American history during some of the same time periods in the window that you’re discussing where there wasn’t a suspension. 

You do see both executive officials and courts insisting on working within this framework and not abusing or pushing the proverbial envelope in the way that you suggest. 

For example, in the Whiskey Rebellion, George Washington orders his military officials to work within the courts, you are not to abuse your power, we are not in this for military detention. 

He never even conceives of suspending or claiming that authority and that’s what follows and judges release people because they aren’t charged and we don’t necessarily see abusing an abuse of the criminalization. 

What we also see, 

For example, during the burr conspiracy Jefferson does push the envelope initially and has a number of principles arrested and held in military custody. 

But he goes to Congress and says I need a suspension to keep holding these people. 

Congress refuses, the house votes down the proposal. 

After that it sails through the Senate and in the critical days that followed the Jefferson administration regroups charges the principal criminally moves them into civilian custody. 

They work again within the law instead of trying to push the boundaries and he definitely wanted to but he worked within the law and I think that’s a really important historical lesson.

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Lincoln’s Suspension of Habeas Corpus

So the part of this story that is famous and everybody knows is this question that, 

Was Lincoln’s suspension of habeas corpus constitutional?

Was Lincoln’s suspension of habeas corpus justified?

or 

Is it the president that is tested in the Civil War Era? 

Lincoln kind of gets away with it but ultimately goes to Congress and everybody’s kind of agreed that an executive suspension isn’t OK. 

So in your view does the rule survive the Civil War or is it? 

Does it not survive the Civil War because Lincoln says. 

And I don’t know about a year and a half away with a kind of executive only suspension. 

The basic rule does it survive the period, so it doesn’t. 

It’s been almost two years before the Civil War, Congress finally passed legislation. What’s interesting about that is they debate it quite actively through that whole period and the debates are very sophisticated, very much full of debates about the history that precedes the period. 

There’s a real appreciation for this model and how it works but they dragged their feet and there’s a bit of a chicken and egg problem there because there’s no urgency. 

Because Lincoln’s going ahead and doing it anyway and very quickly into the war. 

He declares a nationwide suspension on his own. 

So it doesn’t matter what do I mean by that? 

I mean that Lincoln believed he could not arrest Confederate soldiers or sympathizers without having a suspension. 

So that part of the model survives at least through the Civil War and reconstruction. 

When we actually see another suspension that grant invokes to help combat the Klan and promote civil rights interestingly enough but the other part  to which you refer of Lincoln claiming the power for his own sets us on a different course going forward and I think that’s part of the explanation for what we see in the 20th and 21st century, where we see an executive claiming broader power that gave the executive for dealing with these kinds of wartime problems.

Short History of Lincoln’s Suspension

It was Abraham Lincoln, who first suspended the writ of Habeas Corpus in the United States.

I know Lincoln and his wisdom did as the executive better authorized his Generals to suspend the writ of habeas corpus. 

The Lincoln administration found civil liberties and inconvenience.

Abraham Lincoln was much more careful and cautious about suspending civil liberties than other wartime presidents in our history.

But there were certainly violations of civil liberties during the Civil War.

Habeas Corpus is basically the right that was suspended a number of times during the war by Lincoln.

Administration suspending habeas corpus means you can just round people up and put them in jail.

That’s it Lincoln did first in Maryland at the beginning of the war but that was a military scenario.

There were riots in Maryland, there were people blowing up bridges to prevent Union troops from protecting Washington DC and Lincoln ordered the suspension of the writ of habeas corpus along the railroad line.

Later on, Lincoln suspended the writ of habeas corpus throughout the North.

Lincoln was cautious but certainly the people were arrested who were not a danger to anybody but critics of the administration.

How did habeas corpus affect the rights of citizens?

President Lincoln’s suspension of the writ of habeas corpus means that citizens should be restrained for promoting any anti-State Agenda and protection of the American citizens from the violence.

The most famous case was congressman Clement Van Landingham of Ohio, who after giving a fiery speech criticized the Lincoln administration and the war in 1863. He was arrested by General Burnside in Ohio.

Lincoln didn’t specifically order his arrest but he defended it and justified it.

Certain newspapers were suppressed temporarily in the North through Chicago times, for example which criticized the administration strongly.

Burnside again suppressed at Lincoln eventually ordered at the Times to be allowed to resume printing.

There were arbitrary arrests in the North but it’s worth pointing out of course that the press was free.

And the Chief Justice in the Maryland case declared that, “that was unconstitutional”. 

Only the Congress can suspend habeas corpus not the president. 

But it was all diffused; the politics of the wars would imagine the Generals ignored.

After the war, Congress did enact legislation that effectively ratified what Lincoln had done previously.

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Suspension of Habeas Corpus in WarTime

Alright, so this brings us to skip over a few years. 

Here we’re gonna go to the World War II era. 

I’m gonna come back to the World War I era after we talk about the contemporary period but you attach a lot of importance to the internment of the Japanese Americans. 

During World War II when most people think about the Korematsu and endo cases they are not thinking about. 

So the suspension clause ties this into a package that makes sense why is this period really about habeas. 

So it’s not the story. 

There should have been a lot of prominent government officials when internment was first proposed by highly educated members, well trained lawyers in the administration said you cannot in turn sit in pajamas. 

Just an interesting historical curio that included J. Edgar Hoover, yes, not normally thought of as a hero of civil liberties but Hoover was quite adamant that there was no factual support for any need to intern japanese-americans. 

He said there are a handful of bad people out there. 

They are under surveillance. 

There is no need for any of these policies and he said that repeatedly. 

The Attorney General of the United States Francis Pillow, who interestingly enough, was the son of a law professor and had an ancestor who had made important arguments during the ratification debates about the suspension clause. 

He said immediately when this was proposed, this is unconstitutional, it will violate the suspension clause. 

The Secretary of War clearly understood that this would violate the suspension clause and worked within this framework in dealing with problems in Hawaii where there was a suspension in the Hawaiian territory during the war. 

Other officials in the Justice Department recognized this but the policies wind up getting rolled out. 

So the story of World War II is that the suspension Clause is central to all of this but it winds up not mattering to the government officials who are making these decisions or the ultimate government officials who make these decisions the War Department, the President and then ultimately when these cases spill into the courts it doesn’t matter they are either in particular in the Supreme Court. 

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Habeas Corpus Suspension Case:

Alright so let’s talk about that case you talk about the most is endo but let’s talk about first Korematsu. 

The Supreme Court confronted this internment under your vision. 

Your historical vision of the habeas rule should be a really easy case right there is no suspension affecting the coastal areas of the United States, not by the president, not by Congress there are a lot of people who were in the language of the time that we would use locked up. 

First of all, why isn’t it charged? why isn’t it argued as a suspension Clause issue? 

And secondly why does the Supreme Court not even talk about it as a suspension? 

So in endo, the lawyer did raise the suspension clause and relied heavily on the Milligan decision which was a decision decided right after the civil war in which the Supreme Court had held that an individual who was tried by a military commission in Indiana that the court specifically in Milligan held the trial was unconstitutional because he had been denied the classic protections of citizenship and the criminal process that were his birthright. 

The court says trial by jury etc and the court went on also Milligan to say and the suspension that’s in place under the specific terms of the Civil War suspension which had various conditions he also is not being lawfully detained. 

You can’t just keep holding him under that. 

So Milligan is a really important decision in this line and the lawyer who represented Endo argued and relied heavily on Milligan that her detention violated the suspension Clause as he put it in one of his briefs if you can’t try somebody because they have all of these rights and you can’t hold them. 

Doesn’t Milligan completely control this case? 

This is to borrow from you an easy case that’s interesting about the endo cases. 

It unfolds is the government’s brief which was authored by among other people. 

Herbert Wexler does not even engage in this argument, it instead just tells a story a narrative of how the military regulations were implemented.

Is it almost purely factual in nature?

It doesn’t engage with these arguments at all almost as if to imply that they are worthless, there are frivolous and it’s when the court takes up the case I think they view it as a hot potato that they just want to make go away and one of the things the government had done throughout the litigation the case was offer her release and therefore concede that she was loyal. 

She stayed in the camps for two extra years to keep her case alive knowing that it was the only case that directly challenged the internment Korematsu and Hirabayashi involved curfew issues exclusion issues. 

They were intimately related to the internment that they were matters that came up before you reported to the relocation centers or the assembly centers from which you were then sent to the relocation centers. 

So she knew the importance of her case and this young woman who was separated from her family put in different camps had a brother fighting for the US Army. 

She says No! I’m gonna stay. 

And she stays two more years almost. 

And all of this goes in front of the Supreme Court. 

And the court is looking to make it go away and so they chart the narrowest possible course to give her a win and they tip off the White House before the decision comes down.

So that the White House the day before the decision comes down can announce that it’s closing the camps. 

So on the ground it’s an important decision because it does result in the closing of the camps and that is significant. 

That’s a huge win but in terms of the long landscape of this area of the law it’s a missed opportunity and I think it’s part of the story of how this history to come back to one of your earlier questions gets forgotten because that was an important opportunity for the court to say “this is what this clause that nobody ever talks about”. 

In our constitution actually means this is what it was supposed to do and if they miss that opportunity they don’t say that they decide the case by saying that the military regulations do not allow detaining people who the government concedes are loyal and therefore does win. 

But they don’t actually hold anything. 

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Suspension of Habeas Corpus After 9/11:

So now let’s fast-forward post-9 /11. 

There’s not a whole lot since endo which is not a suspension Clause case and you argue should be and 9/11. 

There’s not a lot of suspension Clause jurisprudence.

There’s a lot of habeas jurisprudence but it’s almost all in the form of collateral attack on post undone convictions which isn’t pretty far from what the historical habeas is that is really about. 

Now we start capturing people who the government contends are Al-Qaeda members or affiliates, some of them in very small numbers or US citizens. 

Even smaller numbers are captured domestically.

I think the smaller number is a universe of one. 

So we’re talking very small numbers but the numbers of people who are held who claim the protection of the suspension Clause, claim the protection of habeas is not that small it’s thousands of people.

Hundreds of people at Guantanamo and a large group of lawyers who want to litigate on all of their behalf. 

How did the court think about this in relation to suspension? and 

How should it have thought about it in relation to suspension? 

So that’s a big question. 

There are a number of cases that come to the Supreme Court in the wake of 9/11. 

The big ones in my view that go to the heart of these questions are the cases of Jose Padilla, The American, who was an American citizen picked up in Chicago at O’Hare returning from a trip. 

Yaser Hamdi who was taken into custody in Afghanistan by the Northern Alliance turned over to American forces eventually moved to Guantanamo Bay and then held domestically after that. 

And then the boumediene case. 

So there are a lot of prominent people who distinguish between Padilla’s case and Hamdi’s case of the point of capture and it is just to be clear Padilla is captured at O’Hare Airport trying to come into the United States. 

Hamdi is captured in theatres in Afghanistan. 

He’s a Saudi American who shows up in Afghanistan and joins the Taliban unit. 

So a lot of people as I said have differentiated between the two; they’re both citizenship cases or citizen cases because of the point of capture but by the time the government brings Hamdi to the United States and he’s on domestic soil. 

I think any arguable distinction vanishes at least if we look historically because historically Hamdi case looks just like the Jacobite supporters who were captured on the high seas beyond the reach of the English Habeas Corpus Act when the moment they set foot on English soil can now invoke the English Habeas Corpus Act. 

That’s why they needed to have suspensions to hold those people if they couldn’t try them that how the model worked.

And so if you look historically you can find perfect analogies. 

Well nothing’s perfect but strong analogies between the Padilla case and historical episodes because he’s picked up domestically and held domestically and labeled an enemy combatant and held outside the criminal process without a suspension because the minute he’s brought to United States soil at least historically that becomes an easy case where things get complicated is when you go beyond that. 

What I’ve just said is very controversial because and I’ll dwell on that for a moment before talking about Guantanamo Bay because obviously the Supreme Court doesn’t agree with anything I just said yes. 

So before we go on, let’s break that down a little bit because what the Supreme Court said in Hamdi is there may be a question about, 

Whether he actually is an enemy combatant and he gets the right to litigate? 

That question the government’s got to give him a reasonable process for that but if he is an enemy combatant they get to hold him until the end of hostilities and there were depending on how you count five or maybe seven votes for that basic idea with whatever level of process why is it wrong? 

So I think it’s wrong because traditionally citizenship and allegiance were quite important and they were bound up with this idea that is at the heart of the suspension model that I think the framers consciously imported into and constitutionalized in our Suspension Clause that gave the government hard choices even in times of war. 

So Justice Jackson famously calls a Suspension Clause the only express emergency provision in the Constitution and I think this is why it’s an on/off switch that has to deal with individual liberty in extreme emergencies that’s a phrase that Blackstone used. 

It should only be warranted in extreme emergencies and in the discussion of the Suspension Clause that Hamilton has in the Federalist Papers. 

He quotes from that passage and he says “this is the idea, this is a really big deal to hold people who can claim the protection of domestic law outside the criminal process”. 

The criminal process is how we test the legality of detention at least for people within our community and it’s different. 

If we’re in a declared state of war with a foreign country and we pick up some of their prisoners during time of war. 

For example, the English treated the French differently than American rebels they dealt with them through the law of nations and held French prisoners in the American Revolution as prisoners of war but Americans were rebels they were traitors and if you want to hold them outside the criminal process you have to suspend and for all those Americans who were brought to England during the revolution. 

That’s what Parliament did; they didn’t have to do it for those held here because they had denied operation of the Act here what you translate that to the cases of Hamdi and Padilla. 

They are virtually on all fours with that model. 

And if that was the core purpose the animating driving purpose of this particular provision in the Constitution then the opinion for the plurality and Hamdi that says no we can do this, we’re going to come up with some kind of procedure to ascertain whether you’re an enemy combatant and then you can be held.

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Suspension Clause Of Habeas Corpus 

We have now completely abdicated using and invoking that model and that raises the question.

Okay well, 

What does the suspension clause do now? 

What’s interesting about the Hamdi plurality written by Justice O’Connor is she doesn’t talk about any of this historical material even though the dissent by Justice Scalia and Stevens invokes a lot of it. 

And she does not address it at all and instead looks to a body of case law developed very recently having to do with modern due process issues and specifically in the context of removing government benefits which is a sign of how the due process case law has evolved and part of this larger story of how we forgotten everything before because due process. 

As John Selden argued it in the case of Five Knights was the rights and protections associated with criminal prosecution but all of that at the end of the day means if we continue to adhere to it and it’s a fractured opinion. 

So it’s a prime target for reconsideration and I would urge it to be reconsidered but if we adhere to it. 

What we’re left with is the question that, 

What is the suspension clause doing that the Due Process Clause isn’t already doing? or 

What’s left of the core meaning of the suspension clause? 

Okay so before we turn to boumediene, I want to probe you on two questions related to this. 

»»» The first is and everybody talks about the Kiran case and the Germans in World War two I want to talk about Germans in World War I and as far as I know, I’m describing a null set here which is why I’m using it but imagine that among the many German POWs that we pick up in World War I are some US citizens very plausible. 

Almost certainly happened, we held a lot of Germans during World War I and imagine some of them sued saying there was no suspension as applied to me. 

Do you believe that the Supreme Court in 1916 would have applied the historical rule that you’re describing. 

And said the substantive law is suspension of authorization for the use of military force. 

In the context of the declaration of war against Germany doesn’t authorize the detention of a US citizen absent. 

A suspension therefore either charge this guy who you have nothing on except that he you know happened to be wearing a German uniform. 

Well let him go with it. 

Is that the rule they would have applied in 1915? 

That’s a really great question I think as a predictive matter. 

It’s hard to see that the court would have done that. 

And that’s because the Supreme Court, in the middle of war, doesn’t have a great track record but it would have been the right rule and it would have been a closer question than it was by World War II. 

Absolutely, i will say that this issue did arise and was litigated in at least one case during World War II called enry torito and that’s a case on which justice o’connor relies in Hamdi where you had an italian-american dual citizen. 

There’s a great article by Jess Bravin in the Wall Street Journal about the background of this case but he litigated saying you can’t hold me in the United States because I’m an American citizen and the Ninth Circuit said yes we can treat you under the laws of war and while that’s an understandable approach. 

It is at war with the original idea and the original framework that inform the suspension Clause. 

So I asked about World War I because by World War II you can argue completely consistently with your thesis that the ship sailed because of endo. 

And so by the time the Ninth Circuit rules in Torito maybe we’d already forgotten the basic rule and sort of only Justice Scalia and Stevens remember it kind of weeping over that period. 

But the reason I’m interested in World War I is it cuts through some of that. 

So you’re well what you’re saying is you’re not confident. 

They would have applied the rule because the Supreme Court doesn’t have the greatest track record in the middle of active war. 

They do much better in the immediate wake of war. 

So Milligan Duncan after World War II, they get much more active and involved in the War on Terrorism as the years unfold this is a sort of standard during World War II. 

You get quieren, 

You get endo, 

You get Korematsu, 

You get hereby Oishi Hirabayashi.

Just to take one example, not the Supreme Court’s finest hour. 

In that case the court openly questions the ability of Japanese-Americans to assimilate into American Society. 

So we don’t see Greatest Hits in the middle of war. 

But I take your question and I like the temporal nature of it because it’s a question about when are we forgetting all of this and what I would say is I think this model was likely well known during that period for a number of reasons. 

There were contemporary events. 

For example, the Palmer Raids where citizenship is really important to how people are treated during those periods.

And then I would go up to World War II and come back to the government officials like Biddle who hadn’t forgotten the Suspension Clause even by then they immediately invoke it as internment as proposed and so there is still this continuation of this knowledge. 

It’s the turning point is World War II where it’s raised and for whatever reason we just sort of move ahead and then endow the grand opportunity to revive this knowledge in this history is a lost opportunity. 

 

»»» So the second question the formalistic nature of the rule gives rise to a very admittedly sneaky. 

But I think potentially effective legislative response and if I were a Legislative Council and I were afraid that the court might be attracted by your argument I would simply say whenever Congress passes with it a suspension as to U.S Nationals who are meaningfully allied with the other side it can be one line.

Congress authorizes all necessary and appropriate force against so-and-so and suspends English Habeas Corpus for US citizens fighting as pertains to US citizens. 

And does that formalistic solution entirely solve the problem that you’re describing? 

No, why not. 

It’s Congress doing it, not the executor. 

It’s an invocation of the suspension Clause as to only people who owe allegiance, what’s the problem, what’s missing from it? 

So what I would add is that in terms of the procedures and the structure. 

Yes Congress should make this decision. 

It’s an incredibly dramatic and important decision. 

It’s a good thing that we have rarely had suspensions. 

I’m not Pro suspension by any means. 

It’s a very dire set of circumstances but the caveat or the response to your proposal that I would come back to is a point that I made in the other article. 

I wrote on this subject which is that our courts have to police the boundaries of the exercise of this power that is a controversial proposition in some quarters but I think it is crucially important and as I dug into the founding era evidence, I found a lot of support for this proposal. 

The idea that one we’re only going to allow suspension in the most dire of circumstances. 

So it’s heavily cabined in the language of the Suspension Clause to cases of rebellion or invasion where the public safety may require it beyond that it’s a big deal. 

It’s such a big deal that several states voted against the second half of the Suspension Clause. 

They wanted the clause to read the privilege of the writ of habeas corpus shall not be suspended and when you package that with how the founding generation thought about courts in protecting individual liberty in protecting minority rights particularly as the Constitution unfolds increasingly. 

So it’s hard to believe and indeed there’s a lot of evidence against this that the founding generation didn’t expect the courts to play some policing role around abuses of the suspension power. 

And so that’s a very long-winded way of saying what gives me pause about your proposal. 

And my response to it would be Congress can suspend but they can only suspend constitutionally. 

And the courts have to be able to police the boundaries there. 

And since we authorize the use of force in circumstances that are substantially broader than circumstances of invasion or rebellion, Yes! you could imagine a pretty big gap between the proposal as calm as I’m articulating it.

And the proposal that the court would actually enforce. 

And I think that’s right and as you laid it out that was my reaction that there’s a huge gap potentially between the sweep of the authorization and what could be a valid suspension. 

I mean it could get you to Padilla who was invading right but maybe not to Hamdi who we brought here. 

I think it’s really hard to have it get to Hamdi and I will say Justice Scalia who wrote a very powerful dissent in Hamdi that invoked a lot of this history does include a passage that says look if 9/11 was a rebellion or invasion. 

That’s for Congress to say I can’t second-guess that and he’s got a lot of company to suggest that any invocation of the suspension Authority is not subject to judicial review. 

But I think that’s wrong and as both as a matter of looking at what the founder slot is but also as a structural matter. 

When you think about the role of the courts and how big of a deal this is and I also think historically. 

There’s a lot of evidence for courts exercising this kind of judicial review. 

So just to offer one story that I talked about in the book and then I told Justice Scalia when he was alive and he was a little bit flabbergasted by during the Whiskey Rebellion. 

The President of the United States in this case George Washington to seek certification from a Supreme Court justice before he could call up the militia and the certification had to prove that circumstances were so dire in a particular jurisdiction that it was necessary to put down the problem with force. 

And so George Washington goes to James Wilson and says I want to call it the militia to deal with the Whiskey Rebellion, 

Will you give me permission? and James Wilson said yeah! I’ve looked at everything. It looks pretty bad and he certifies the circumstances and there are a lot more examples of that from the founding period. 

So I don’t think that the founders were uncomfortable with judges guessing some of these decisions.

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Habeas Corpus and Guantanamo Bay

Okay, So one more question and then we’ll wrap up. 

The question about the territorial status of Guantanamo. 

Yeah! How should we have thought about the Boumediene case?

So for those of you who don’t know boumediene case is the case in which the Supreme Court considered whether there is habeas jurisdiction over the detainees at Guantanamo and it decided that it did because of some ineffable combination of the close relation and supervision that the courts of the United States was exercising over the facility at Guantanamo. 

How should they have understood that it’s not classically the rule that you’re talking about?

Because it’s not people who owe allegiance to the United States. 

It’s much more like the French when the British are dealing with the Jacobites. 

So was the right answer to boumediene to say with them no habeas. 

So boumediene is a complicated case as i detail in the other Article and i will explain what i mean by this. 

How one thinks about boumediene is going to be strongly informed by one’s methodology of constitutional interpretation? 

And what i mean by that is, that i’m not sure there is a good historical analog. 

You could argue that the french are the right analog but a lot of issues have come up in the war on terror. 

A new paradigm they present new problems that don’t map neatly on to the historical examples that informed the development of this model. 

So they’re not like the French in the sense that the British were in a declared state of war within various occasions including during the American Revolution.

So any Frenchman captured was treated automatically as a powa and was protected under the law of nations and that came with significant protections. 

So for example, the French prisoners during the American Revolution were given full rations and the American prisoners were only given partial rations because they were viewed as traitors and they could not invoke all the protections associated with being a prisoner of war under the law of nations. 

How does that translate on to Guantanamo Bay? 

It’s tricky and the war on terrorism. 

There’s no perfect mapping with either of the historical models and that can cut in different directions and for the Supreme Court justices it cut in totally different directions. 

So the majority said there’s no historical analog to this. 

We are gonna throw out history. 

We’re not going to look at it. 

We’re going to talk about the separation of powers. 

We’re gonna talk about the fact that the executive is for the most part arguing or this was the perception of the majority arguing that no law governs at Guantanamo Bay and Justice Kennedy writing for the court is quite alarmed and exercised by that prospect. 

He adds that Guantanamo Bay is like a United State’s territory because there’s no other sovereign whose law governs there. 

And ultimately that pushes the court in the direction. 

The majority of five say there’s going to be some judicial check on the status determination of these people as enemy combatants. 

The dissenters by contrast say there’s no historical analog.

Domestic law does not address this. What I say in the Article is I think the one Justice who lines up with the dissent in Hamdi that I believe is consistent with history and the majority in boumediene is justice Stevens. 

And Justice Stevens’ methodological approach is to say the Constitution establishes a floor but not a ceiling.

So I think he would explain his votes probably by saying I agree that the history makes clear that the government cannot go below the floor of arresting people who owe allegiance outside the criminal process in the absence of a suspension. 

But that’s not the ceiling the Suspension Clause can do other things as well. 

It can expand and he would probably point to the classic common law writ which served all kinds of different functions. 

And he would probably say that was part of also what the Suspension Clause meant to embrace or maybe we should just interpret it that way.

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Suspension of Habeas Corpus Today

Today, where as Justice Scalia dissenting in Boumediene says no is that was a floor and was also a ceiling and we shouldn’t interpret the Suspension Clause to go further. 

So the main point of my discussion of the case in the Article is that I think methodology does a lot of work in terms of how one looks at the case and whether one agrees or disagrees from my perspective. 

The problem with Hamdi and boumedienne is that they are both effectively equating the suspension clause in both contexts with some generic modern due process principle that involves balancing the government’s interest against the interests of individual liberty. 

And whatever the benefits or you know support for that in the context of boumedienne. It leads the court down. 

A dangerous path in Hamdi whereby we do go below in my opinion that clear constitutional floor. 

There’s a great point on which to wrap up. 

So just to crystallize that point how would you sever the concept of the Suspension Clause from the concept of due process? 

Well you want to take a meat cleaver and cut them apart. 

What’s the work that you want one to do? 

And, 

What’s the work you want the other to do?

Well, I don’t necessarily come down to take a strong position in the book on this other than to say the modern due process framework should not be in effect should not be controlling a case like Hamdi because that’s a case that under the classic model is a very easy case. 

Again to come back to what you had said earlier and by importing due process into that context we have watered down and basically gutted the traditional idea that informed the Suspension Clause and its core purpose.

So you want due process to be whatever due process is but there is. 

And you can apply whatever balancing tests you want, whatever kind of gauzy modern fancy stuff you want to do under due process. 

But suspension is a bright-line simple rule that the conditions are either met or not and it’s not contingent on anything else. 

That sounds very strong but for the most part I think that’s consistent at least with respect to cases like Hamdi with the traditional model that governed all the way up until World War II. 

And to my lights if we’re going to jettison all of that history based on the pivotal point being the internment of Japanese-Americans during World War II that’s a huge mistake and that’s just compounding what was a terrible historical episode in this country.

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