In a landmark decision, the Supreme Court held that German nationals, detained in China and held in a U.S. Army facility in Germany, had no right to seek a writ of habeas corpus to test the legality of their detention. Although they remained in the custody of the United States Army following a conviction by a U.S. military commission, they had at no time been on sovereign American territory, a factor the Court found was necessary for the extension of constitutional rights to aliens.
Lothar Eisentrager (alias Ludwig Ehrhardt), along with 20 other German nationals, petitioned the District Court of the District of Columbia for writs of habeas corpus, alleging they were unlawfully detained for violating the laws of war. The German soldiers, acting “under the control of the armed forces of the Japanese empire,” were charged with engaging in military activity in Asia after the unconditional surrender executed by the German High Command on May 8, 1945. The activity consisted of “collecting and furnishing intelligence concerning American forces and their movements to the Japanese armed forces.” The prisoners were taken into custody by the United States Army after the Japanese surrendered, and were found guilty by a United States military commission convened in China. After conviction and review, they were repatriated to Germany to serve their sentences in United States Army custody.
The prisoners filed petitions for habeas relief in U.S. federal district court. Following the district court’s dismissal of those petitions, the Court of Appeals reversed and remanded. The Court of Appeals concluded that “any person, including an enemy alien, deprived of his liberty anywhere under any purported authority of the United States is entitled to the writ if he can show that extension to his cases of any constitutional rights or limitations would show is imprisonment illegal.” Although the Court of Appeals cited to no cases or statutes as precedent for extending such a right to enemy aliens, it held that “the answers stem directly from fundamentals.” The Supreme Court granted certiorari to resolve whether U.S. federal courts could rightly exercise habeas corpus jurisdiction on behalf of prisoners taken overseas who had been convicted by military tribunal. Reversing the judgment of the Court of Appeals and reinstating the dismissal of the petition by the District Court, the Court concluded that, because the prisoners had never been on sovereign United States territory, the was no territorial jurisdiction to even consider their petitions.
Citing both Ex Parte Quirin and In Re Yamashita, Justice Robert Jackson, for a 6-member majority of the Court, wrote that “the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an enemy engaged in hostile service of a government at war with the United States.” The Court pointed out that “the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied protection.” Because the German prisoners were at no time on sovereign American territory, they could not claim that they were within the territorial jurisdiction of the American courts.
Following a historical overview, beginning with citizenship as the most basic head of jurisdiction, the Court determined that presence within the territorial jurisdiction of the United States was necessary to extend constitutional rights to alien nationals. “In extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien’s presence within its territorial jurisdiction that gave the Judiciary power to act.” The Court continued: “Mere lawful presence in the country creates an implied assurance of safe conduct and gives him [the alien] certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.” However, this scheme only holds true during peacetime, as “executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security.”
Indeed, during times of declared war, the Court wrote, “[t]he alien enemy is bound by an allegiance which commits him to lose no opportunity to forward the cause of our enemy; hence the United States, assuming him to be faithful to his allegiance, regards him as part of the enemy resources. It therefore takes measures to disable him from commission of hostile acts imputed as his intention because they are a duty to his sovereign.” Thus, although “courts in peace time have little occasion to inquire whether litigants before them are alien or citizen,” that status has profound implications for their access to the courts in times of war.
Justice Jackson dismissed the notion that an alien abroad has access to the U.S. courts. “We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (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.” This the Court did not accept. “We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who at no relevant time and in no stage of his captivity has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.”
Having determined that enemy aliens have no constitutional right to access United States’ courts during times of war, the Court went on to discuss the problems that would arise were that access allowed. The logistical costs of producing the petitioner before the Court (a “basic consideration of habeas corpus practice”) alone seem enough to justify denying access. Military and tactical concerns about allowing enemy aliens access to U.S. courts were also raised. And, the Court noted, that no other country extends the privilege to aliens in this way. “To grant the writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. 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…. Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands. The right of judicial refuge from military action, which it is proposed to bestow on the enemy, can purchase no equivalent for benefit of our citizen soldiers.”
While Eisentrager is still nominally good law, it is no longer clear whether United States federal courts have jurisdiction over enemy aliens captured outside our territory. Although the government initially pointed to Eisentrager to argue that federal courts had no jurisdiction over prisoners held at Guantanamo, this principle was rejected in Rasul and ultimately Boumediene . But, these cases did not directly overrule Eisentrager, and rather extended federal habeas jurisdiction mainly by distinguishing the special status of the Guantanamo Naval Base from where the petitioners in Eisentrager had been detained.
Major Commentary and Academic Literature:
USERS CAN ADD.
Ex Parte Quirin, 317 U.S. 1 (1942)
Rasul v. Bush, 542 U.S. 466 (2004)
Boumediene v. Bush, 553 U.S. 723 (2008)