Turow on Scalia in Hamdi
As many readers probably know, Scott Turow has an essay in yesterday's New York Times in which he suggests that Justice Scalia may end up being one of the most important defenders of civil liberties on the Court, especially in future "war on terror" cases. Turow makes some interesting points about Scalia opinions in a number of recent civil liberties cases, including Apprendi v. New Jersey. But he seems to place the most weight on Justice Scalia's dissenting opinion in the 2004 case Hamdi v. Rumsfeld. And there, I think Turow is quite wrong. (Warning/shameless plug: much of what follows in this post is derived from a recent article of mine, "Hamdi's Habeas Puzzle: Suspension as Authorization?" 91 Cornell L. Rev. 411 (2006). A draft of the article is available here.)
As most readers probably know, Hamdi involved a challenge to the executive branch's detention, without charge, of a U.S. citizen alleged to be an enemy combatant. The case divided the Court, producing four opinions in all. A majority of the Court ultimately agreed that Congress authorized this sort of detention when it passed the Authorization for Use of Military Force (AUMF) in the immediate aftermath of 9/11, but that detainees like Hamdi have a due process right to challenge their detention and the accuracy of their designation as enemy combatants. Justice Scalia dissented in an opinion joined by Justice Stevens. In his view, it was irrelevant whether Congress had intended to authorize enemy combatant detention when it passed the AUMF, for Congress simply cannot authorize such detention by ordinary legislation. Instead, he maintained that the government's only options with respect to U.S. citizen detainees are to (1) charge them criminally, (2) release them, or (3) convince Congress to suspend habeas corpus.
Many commentators (including, apparently, Turow) have hailed Justice Scalia's opinion as a paragon of civil libertarianism. They often do this by ignoring the third option listed above. Turow, for example, reads Justice Scalia to say that when it comes to a U.S. citizen like Hamdi, the government "must press criminal charges or let him go." But that's not complete. In several places throughout his opinion, Justice Scalia made it clear that another option would be for Congress to suspend the writ of habeas corpus. For example, he stated early in his opinion that, "[a]bsent suspension, . . . the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge." (My article, linked to above, discusses this and other similar passages at length.) In short, Justice Scalia's position is that suspending the writ of habeas corpus is necessary and sufficient to authorize the otherwise-unlawful extrajudicial detention of alleged enemy combatants.
I think Justice Scalia's view of suspending the writ, which I call "suspension as authorization," is both formally untenable and functionally undesirable. Formally speaking, suspending the writ simply removes a judicial remedy, albeit a very important one. It does not change the legality of the underlying government conduct. If, as Justice Scalia opined, the extrajudicial detention of U.S. citizen enemy combatants is not something Congress can authorize by legislation like the AUMF, removing the principal remedy against unlawful detention does not make the detention lawful.
Functionally speaking, Justice Scalia's approach effectively invites Congress to read one branch of government (the judiciary) out of the equation in order for another (the executive) to act. But that is contrary to the basic principle of checks and balances established by the constitutional separation of powers. The problem is even worse when one recognizes that, in Justice Scalia's view, Congress alone has the authority to decide whether the predicates for suspending the writ have been met. The Suspension Clause provides that habeas shall not be suspended "unless when in cases of rebellion or invasion the public safety may require it." In Hamdi, Justice Scalia took the position that the courts have no role to play in second-guessing Congress's determination that such a "rebellion or invasion" exists. On that view, if Congress decides that the global war on terror itself amounts to an "invasion" requiring the suspension of the writ, its determination is conclusive on the judiciary. And once the writ is suspended, otherwise illegal extrajudicial detention becomes lawful, with the courts having no role to play. Hardly a bold stand for civil libertarianism.
(I should note that there are two new articles about to appear that may well bear on these matters. David Shapiro of Harvard has a piece forthcoming in the Notre Dame Law Review apparently arguing, contra me, that suspending the writ does affect the underlying legality of the detention, at least in some respects. And Amanda Tyler has a piece forthcoming in the Stanford Law Review arguing, contra Scalia, that suspension of the writ is not a political question. I'm looking forward to reading both pieces when they appear.)
As most readers probably know, Hamdi involved a challenge to the executive branch's detention, without charge, of a U.S. citizen alleged to be an enemy combatant. The case divided the Court, producing four opinions in all. A majority of the Court ultimately agreed that Congress authorized this sort of detention when it passed the Authorization for Use of Military Force (AUMF) in the immediate aftermath of 9/11, but that detainees like Hamdi have a due process right to challenge their detention and the accuracy of their designation as enemy combatants. Justice Scalia dissented in an opinion joined by Justice Stevens. In his view, it was irrelevant whether Congress had intended to authorize enemy combatant detention when it passed the AUMF, for Congress simply cannot authorize such detention by ordinary legislation. Instead, he maintained that the government's only options with respect to U.S. citizen detainees are to (1) charge them criminally, (2) release them, or (3) convince Congress to suspend habeas corpus.
Many commentators (including, apparently, Turow) have hailed Justice Scalia's opinion as a paragon of civil libertarianism. They often do this by ignoring the third option listed above. Turow, for example, reads Justice Scalia to say that when it comes to a U.S. citizen like Hamdi, the government "must press criminal charges or let him go." But that's not complete. In several places throughout his opinion, Justice Scalia made it clear that another option would be for Congress to suspend the writ of habeas corpus. For example, he stated early in his opinion that, "[a]bsent suspension, . . . the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge." (My article, linked to above, discusses this and other similar passages at length.) In short, Justice Scalia's position is that suspending the writ of habeas corpus is necessary and sufficient to authorize the otherwise-unlawful extrajudicial detention of alleged enemy combatants.
I think Justice Scalia's view of suspending the writ, which I call "suspension as authorization," is both formally untenable and functionally undesirable. Formally speaking, suspending the writ simply removes a judicial remedy, albeit a very important one. It does not change the legality of the underlying government conduct. If, as Justice Scalia opined, the extrajudicial detention of U.S. citizen enemy combatants is not something Congress can authorize by legislation like the AUMF, removing the principal remedy against unlawful detention does not make the detention lawful.
Functionally speaking, Justice Scalia's approach effectively invites Congress to read one branch of government (the judiciary) out of the equation in order for another (the executive) to act. But that is contrary to the basic principle of checks and balances established by the constitutional separation of powers. The problem is even worse when one recognizes that, in Justice Scalia's view, Congress alone has the authority to decide whether the predicates for suspending the writ have been met. The Suspension Clause provides that habeas shall not be suspended "unless when in cases of rebellion or invasion the public safety may require it." In Hamdi, Justice Scalia took the position that the courts have no role to play in second-guessing Congress's determination that such a "rebellion or invasion" exists. On that view, if Congress decides that the global war on terror itself amounts to an "invasion" requiring the suspension of the writ, its determination is conclusive on the judiciary. And once the writ is suspended, otherwise illegal extrajudicial detention becomes lawful, with the courts having no role to play. Hardly a bold stand for civil libertarianism.
(I should note that there are two new articles about to appear that may well bear on these matters. David Shapiro of Harvard has a piece forthcoming in the Notre Dame Law Review apparently arguing, contra me, that suspending the writ does affect the underlying legality of the detention, at least in some respects. And Amanda Tyler has a piece forthcoming in the Stanford Law Review arguing, contra Scalia, that suspension of the writ is not a political question. I'm looking forward to reading both pieces when they appear.)
posted by Trevor Morrison @ 3:15 PM
4 Comments:
At 5:54 PM,
Gomer Max said…
In addition to the substantive reasons that Prof. Dorf has stated, Scalia's jurisprudence prevents people from labeling him as a champion of civil liberties based on his court opinions. He is a textualist and generally limits the basis of his opinions to the text. Whether he believes in strengthening civil liberties will be irrelevant to his decision making. So I think making predictions about his future decision making based on his supposed support of civil liberties would be a faulty prediction.
At 5:55 PM,
Gomer Max said…
Oops. I should have said Prof. Morrison.
At 10:45 PM,
Anonymous said…
"Functionally speaking, Justice Scalia's approach effectively invites Congress to read one branch of government (the judiciary) out of the equation in order for another (the executive) to act."
I think that statement improperly implies more about judicial power in this case than the text (or the "archi-text") allows.
The habeas clause is in Article I, Sec. 9, which is a list of prohibitions on Congress. It neither speaks to nor implies any reference to the judiciary, or even to the executive. Accordingly, there must be some basis (other than personal preference) for asserting that the judiciary belongs in the equation in the first place, let alone that it can be taken out of it.
Consider a few other clauses: Art. II.2 gives the President power to appoint ambassadors with the advice and consent of the Senate. By implication, that suggests the judiciary is not part of that equation, and so could never be written out of the equation. The House is given the sole power of impeachment, and the Senate has power to try impeachments, so no checks and balances among the other two branches there. Art. III.2.2 gives Congress an exceptions power over the Supreme Court's jurisdiction, so the President can't be written out of that equation -- he was never in it in the first place.
Granted, none of those examples (which I just made up on the fly, so maybe there are better ones out there) deals with Art. I.9, so perhaps it can be argued that the section as a whole implies a right of judicial review. Indeed, a prima facie argument can be made that I.9.3 -- preventing bills of attainder -- are necessary subject to judicial review. The same can be said of I.9.1 (migration or importation of persons), I.9.4 (no capitation or direct taxes), I.9.5 no taxes on state exports), I.9.6 (port preferences), and I.9.8 (titles of nobility).
Note that I omitted I.9.7 from that list. Like I.9.2, this clause is structurally different from the rest. It forbids Congress from doing something, "unless." In the latter, it says Congress can't take treasury money except by appropriations made by law. In the former, it says Congress can't suspend habeas unless invasion or public safety requires it. Are these structural differences sufficient to suggest that no judicial review is contemplated? I think at least a prima facie case can be made that they suggest just that. Judges do not, for example, pass on the legality of spending bills, they just note that Congress has broad spending power and let it go (unless there's some other clause at work, like the First Amendment). That being the case, and given the similar structure of I.9.2, there is good reason to believe that Scalia isn't seeking to write the judiciary out of habeas relief, because it was never there in the first place.
At 8:28 AM,
Trevor Morrison said…
I'm not sure I fully understand sobek's point, but I think the short answer for why "the judiciary belongs in the equation in the first place" when it comes to habeas corpus is:
1. We're talking about petitions for writs of habeas corpus. These are petitions for a judicial writ, issued by courts. That has been so ever since the creation of habeas corpus centuries ago in England. And the Supreme Court has said many times that the basic contours of the constitutional reference to habeas corpus should be understood with reference to its English origins. So everyone understands the Suspension Clause to speak to the circumstances when the privileges of a judicial writ may be suspended. Given that, I just don't understand what sobek means when by saying "there is good reason to believe that Scalia isn't seeking to write the judiciary out of habeas relief, because it was never there in the first place." Simply put, there *is* no habeas relief without the courts.
2. Note that the above point does not go to whether the Suspension Clause itself guarantees a particular right to habeas, in the absence of legislation providing for it. That's a separate question, and there's no consensus on the right answer. But regardless, Congress has since the Judiciary Act of 1789 provided a habeas remedy issuable by the federal courts.
2. If sobek means to ask where the federal judiciary gets *jurisdiction* to hear habeas cases, I think the place to be looking is the same place we always start looking when wanting to know about the federal courts' jurisdiction: Article III. And I think the courts' jurisdiction to hear habeas petitions asserting violations of federal constitutional or statutory law clearly falls within the Article III (and complementary statutory) conferral of federal jurisdiction over cases arising under the Constitution and laws of the United States.
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