Terrorists Welcome

Robert Alt

June 29, 2004

Baghdad—Meet Umar Baziyani. Mr. Baziyani is believed to be the mastermind behind Ansar al Islam, a terrorist organization in Iraq that provided safe haven and coordinated training for Abu Musab al Zarqawi and his al Qaeda operatives near the Iraq-Iran border. In his role in these respective terrorist organizations, Mr. Baziyani conspired to kill scores of Iraqis and numerous Americans, and joined in a scheme to destabilize an entire nation. Earlier this month, Mr. Baziyani was captured, and he is currently being detained in Iraq. In a recent conversation, a senior Coalition military official revealed that while in detention, Mr. Baziyani "has been helpful" in providing intelligence which assisted the United States in isolating the three Zarqawi-network safe houses targeted in Fallujah in the last week. Yet today, instead of offering additional information, Mr. Baziyani is far more likely to demand to see his lawyer, who—if Baziyani is calculating, and he is—he will direct to file an immediate petition for a writ of habeas corpus in the Northern District of California. Joining him soon enough will be an assortment of terrorists who are detained as part of the active conflict in Iraq, Afghanistan, and wherever the war on terror finds them. This is the bold new world created by yesterday’s Supreme Court decision in Rasul v. Bush, an opinion which opens the federal courts to any detainee held by the United States anywhere in the world.

The question before the Supreme Court was whether federal courts have jurisdiction to hear habeas petitions—which may challenge the basis for detention or conditions of confinement—from detainees held by the United States at Guantanamo Bay, Cuba. Because the detainees did not raise a constitutional claim, the Justices were guided strictly by the relevant habeas statute, which states:

"Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions." (Emphasis added.)

Guantanamo Bay is outside of U.S. territory, and therefore is not in the traditional jurisdiction of any district court. The case would seem to be simple: the statute does not confer jurisdiction in these cases, and federal courts, which heretofore have been bodies of limited jurisdiction, may not hear the case. Furthermore, the Court had the benefit of Johnson v. Eisentrager, a Supreme Court case from 1950, in which foreign detainees captured in China and detained in Germany sought habeas corpus review. The Eisentrager Court found that aliens who are not present within U.S. territorial jurisdiction may not seek the writ.

Yet in spite of the plain language of the statute and clearly applicable Supreme Court precedent, the Supreme Court carved out for the first time a rule which allows anyone held anywhere in the world by the United States to seek habeas review. The Court reasoned that

because the writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody, a district court acts within [its] respective jurisdiction within the meaning of §2241 as long as the custodian can be reached by service of process. (Internal quotations omitted.)

Thus, as Scalia suggests in his able dissent, anyone held in a foreign theatre of active combat such as Iraq or Afghanistan may bring a petition against the Secretary of Defense. While some have tried to cabin the court’s opinion based upon dicta in the opinion which suggests that the Guantanamo Bay is somehow within the sovereignty of the United States, the Court’s decision is far broader. Indeed, Justice Kennedy wrote separately, joining the majority only in judgment, to clarify that he believed the Court should find jurisdiction based on the fact that Guantanamo functionally "belongs" to the United States, rather than the majority’s approach, which broke with clear precedent.

While left-wing groups will inevitably rejoice at yesterday’s opinions, they should have some pause. After all, anyone whose entire jurisprudential worldview is built on the proposition that certain judicial innovations of the 1970s should be respected as binding precedent should at least in theory be concerned that the Court opted to disregard two prior opinions which were far better established both in age and in common law tradition that any of the prized cases which emanated from the Warren Court.

In addition to being bad law, the decision is also bad policy. First, it encourages forum shopping. Because aliens detained in foreign lands are not limited like detainees in the United States to bringing the claim where they are held, there is an incentive to choose, how shall I put this delicately, the most terrorist-friendly courts. There is little question that this is why Rasul’s attorney’s miraculously settled on a district court within the Ninth Circuit.

The next major problem with the decision will be an explosion in case load, particularly in the aforementioned friendly courts. The response inevitably will be that the judges will be able to dismiss a number of the cases easily. This is an odd argument, however, for after droning on about the need for a robust interpretation of the Great Writ, such an argument would nonetheless concede that somehow de minimis process will do.

Most importantly, the decision will have a deleterious effect on the military’s ability to carry out the war on terror. The evidentiary issues arising from presenting testimony from the war zone are larger than the court concedes. Indeed, one need only look at the district court’s decision in the complementary Hamdi decision, in which the lower court requested statements from field combatants who were not in the U.S. military, but rather were members of the Northern Alliance, in order to understand how deeply this decision inserts the courts into military processes. The Supreme Court recognized this 54 years ago in Eisentrager when it found that

such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be conflict between judicial and military opinion highly comforting to enemies of the United States.

Of course, facing such an option, many field commanders may choose not to have the United States detain captives. A number of the detainees from Afghanistan were captured not by the United States military, but by partners, such as the Northern Alliance, which transferred the detainees into U.S. custody. What incentive does the military have to take custody of the detainees if the transfer means more paperwork, and the possibility of having military policy micromanaged by the judiciary? The military may logically permit members of the Northern Alliance to keep the detainees—a move that is likely to lead to less humane treatment. While advocates for the detainees may pat themselves on the back for preventing future Abu Ghraibs—a situation in which legal action was taken against the captors without the aid of habeas law, mind you—they may have in fact relegated future captives to places far, far worse.

I’ve come to loathe late June—a time which signals the end of the Supreme Court’s term—for it is at this time that we as a nation are forced to learn of the "growth" of certain members of the bench. There are many hypothesized reasons for this growth—a euphemism used to describe the gradual shift to the Left by the would-be "swing" Justices. Perhaps certain members of the bench are attempting to build a legacy, or are seeking the accolades of liberal academia or the esteem of the press. Or perhaps they are simply remembering the free spirit of their youth growing up on a ranch in the West. Whatever the reason, in this most recent round of cases, the United States Supreme Court quite simply announced itself at once as legislator to the nation and tribunal to the world by rewriting a well-established statute and opening the courthouse doors to terrorists from every corner of the globe.

Robert D. Alt is a Fellow in Legal and International Affairs at The John M. Ashbrook Center for Public Affairs at Ashland University currently reporting from Iraq. You can follow his daily progress at No Left Turns.