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Tuesday, December 19, 2006

Framing Constitutional Restraints

Over at Slate, Emily Bazelon (erstwhile Dorito) has a plaintive essay about the perils of court-stripping in the MCA context and bar-raising in the AEDPA context. In the course of explaining why Salim Ahmed Hamdan, a detainee from Gitmo, had his case dismissed in federal court, Bazelon writes that

The problem for Hamdan is that he's a noncitizen whose contact with the United States has been "involuntary"—he's in Guantanamo because the military grabbed him and put him there. The MCA stripped Hamdan of the rights to habeas corpus granted by federal statute. There are also constitutional rights to habeas. But noncitizens like Hamdan don't have the sort of "substantial connection with our country" that justifies invoking the constitutional right to habeas corpus, the Supreme Court ruled in 1990, in United States v. Verdugo-Urquidez.

I'm assuming Emily's got the analysis right, and I invite Steve or Marty or others to help me out with this issue, but it strikes me that one thing that's problematic -- from a political theory perspective at least -- regarding what happened to Hamdan here is that we're looking at what rights and remedies a person can have, based on the constitution, rather than what restraints a liberal democratic constitution imposes on the government. These are often related, obviously, but here, because of the framing, it looks as if Hamdan's out of luck because of the lack of substantial connection to the US. What that suggests is the US government has carte blanche against foreigners, at least with respect to false imprisonment. If we framed the inquiry of what government might reasonably and permissibly do, because it happens in our name, rather than what government might do because of the status of the complainant, we might have quite different answers.

I suppose one reason we have the status quo here is that federal courts are of limited jurisdiction over actual cases and controversies, and that has led to a parsimonious strategy to limit access to the courts because of standing doctrine. I wonder, again more as a political theory matter than as a current legal issue, whether jurisdictional stinginess is defensible, especially in situations when the Leviathan of government snatches persons from other states and sticks them in places like Gitmo, where they have already demonstrated themselves to be batting an abysmal average in terms of accuracy. H/t to Jason at Scotusblog.

Posted by Administrators on December 19, 2006 at 09:59 AM in Law and Politics | Permalink


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Also worth considering, as shameless self-promotion, is Kermit Roosevelt, Guantanamo and the Conflict of Laws: Rasul and Beyond, 153 U. Penn. L. Rev. 2017 (2005).

Posted by: Kim Roosevelt | Dec 19, 2006 4:44:29 PM

Oh, yeah, almost forgot: You might also take a look at "THE GEOGRAPHY OF JUSTICE," Kal Raustiala, Fordham 2005.

Posted by: Marty Lederman | Dec 19, 2006 1:30:38 PM

Dan: You could do a whole lot worse than to start with Gerry Neuman's piece in Loyola L. Rev., circa approx. 2004, which I'm sure has plenty of other cites.

On applying the principle in the context of habeas, in particular, Gerry, Harold Koh and Sarah Cleveland provide some very interesting historical context in their recent amicus brief in Al-Marri (most of which Judge Robertson did not address in Hamdan):


Posted by: Marty Lederman | Dec 19, 2006 1:25:59 PM

Thanks Marty. That's the thing about blogging--the privilege of educating oneself in public...
Can you (or others) recommend a couple good recent pieces that try to embed the follow the flag strategy in constitutional discourse?

Posted by: Dan Markel | Dec 19, 2006 12:37:22 PM

One small correction on Bazelon: The Supreme Court did not quite rule in 1990, in United States v. Verdugo-Urquidez, that "noncitizens like Hamdan don't have the sort of 'substantial connection with our country' that justifies invoking the constitutional right to habeas corpus." That case didn't involve any constitutional right *to petition for habeas relief.*

Having said that -- yes, the government's basic argument is that, as in Verdugo-Urquidez, constitutional rights should be seen as attaching only to particular people who have voluntarily made connections to the country, whereas the basic alternative view is that at least *some* constitutional provisions should "follow the flag," because they are intended as constraints on the government, not protections for particular victims of government action.

It's an age-old debate, currently receiving a *lot* of attention in the literature, and famously unresolved in numerous aspects. The GTMO cases are perhaps most important because they will likely prompt the Court to (partially) resolve the debate at least as to two constitutional provisions: the right to habeas (implicit in the Suspension Clause), and, much more importantly perhaps, the Fifth Amendment's due process clause, including its "substantive" protections against conduct that "shocks the conscience" (see, e.g., Cold Cell and waterboarding).

Posted by: Marty Lederman | Dec 19, 2006 12:28:47 PM

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