On Dec. 11, the United States District Court for the District of Columbia heard arguments in ACLU v. Mattis on the question whether the ACLU should be permitted to represent a United States citizen who is currently being detained as an enemy combatant in Iraq. As those following the case already know from prior posts, including this one by Robert Chesney and this one by Steve Vladeck, the government reports that the man in custody was fighting with ISIS and turned himself over to United States allies in Syria. The government has not released his identity and is denying him access to a lawyer, despite the fact that the man has requested counsel. Press reports from yesterday’s hearing suggest that now, three months into the government’s detention of the man, its arguments that it should be permitted more time to decide what to do with him free of judicial interference met a very skeptical judge. In this post, I offer some thoughts on the underlying merits of the case, drawing on material from my new book, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay. In particular, this post explores the historical backdrop that should inform any discussion of the many habeas corpus issues raised in ACLU v. Mattis as well as the Supreme Court’s earlier 2004 decision in Hamdi v. Rumsfeld.
With respect to the legality of the government detaining a citizen enemy combatant, Hamdi looms large. In that case, the court held that at some reasonable point, a detained citizen is constitutionally entitled to access a neutral tribunal to challenge the legality of his or her detention. But here is where the favorable aspects of Hamdi end for the current detainee.
Hamdi involved a man who the Northern Alliance turned over to the United States military after it reportedly captured him fighting with the Taliban in Afghanistan. Eventually, the government brought Hamdi to United States soil for long-term military detention. In a case of first impression, Justice O’Connor’s plurality opinion in Hamdi concluded that “[t]here is no bar to this Nation’s holding one of its own citizens as an enemy combatant.” Justice O’Connor reached this conclusion in large measure by applying modern due process balancing to weigh the detainee’s individual liberty interests again the government interest in national security. Justices Souter and Ginsburg ultimately joined her to make a court, although they expressed general misgivings about the breadth of Justice O’Connor’s opinion and separately opined that the Non-Detention Act, passed by Congress to repudiate the Japanese American internment, precluded the detention in that case.
As I argue in my book, Hamdi’s sanctioning of the idea of a citizen enemy combatant is impossible to square with the historical backdrop to the Constitution’s habeas provision, known as the Suspension Clause. Specifically, as a detailed march through the English and American history of the habeas privilege and its connection with suspension reveal, the idea of a citizen enemy combatant stands entirely at odds with everything the founding generation thought that they were achieving in the Suspension Clause.
The privilege of the writ of habeas corpus was so sacred to the founding generation that they included protection against its suspension in the original body of the Constitution. In particular, the founding generation revered the habeas privilege associated with the English Habeas Corpus Act of 1679, which Parliament enacted for the very purpose of harnessing the royal courts to constrain executive detention. This should not be surprising. After all, William Blackstone, the great English jurist whose work every lawyer in the founding generation read, once called the English Habeas Corpus Act a “second Magna Carta”—equating the Act with the very foundation of Anglo-American ideals of liberty.
No wonder that when the British Crown denied the American colonists the protection of the English Habeas Corpus Act on American soil, the colonists declared that the rights guaranteed by the Act were ones that they were “with one mind, resolved never to resign but with [their] lives.” Indeed, during this period, prominent voices labeled the writ nothing less than “essential to freedom.”
After the Constitutional Convention provided in the draft Constitution that the privilege “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it,” a number of key players in the Ratification debates made clear that the Suspension Clause was predicated upon the English suspension framework and specifically the English Act. Thus, Alexander Hamilton specifically lauded the fact that the Constitution provided for “trial by jury in criminal cases, aided by the habeas corpus act.” Along these same lines, Chief Justice John Marshall later proclaimed that in interpreting the Suspension Clause, we must look to “that law which is in a considerable degree incorporated into our own”—specifically, “the celebrated habeas corpus act” of 1679.
In constitutionalizing the habeas privilege associated with the English Act, the founding generation sought to ensure, as other voices articulated during that seminal period, “that citizens should not be subject to confinement on mere suspicion.” This followed directly from the Act’s terms. Specifically, the English Act provided that persons who could claim the protection of domestic law could not be detained by the crown on suspicion alone, even for suspected treason and even in times of war. To enforce this limitation, the Act required that the crown charge and try persons within two court terms—a period that spanned three to six months—while mandating under threat of penalty that courts award the remedy of discharge where the crown failed to prosecute. Putting these various aspects of the Act together, it enshrined a potent writ that harnessed the courts for the specific purpose of limiting the crown’s ability to arrest and detain citizens outside the criminal process.
These constraints governed even when the government captured a prisoner outside the realm once it moved the prisoner to English soil for detention. In fact, at the outset of the American Revolution, the North Administration sought advice from the great Chief Justice of King’s Bench, Lord Mansfield, on this very point. With respect to American Rebels captured in the colonies or on the seas who were brought to English soil for detention, Mansfield counseled that if they were “so wickedly advised as to claim to be considered as subjects” and invoke the protections of the English Act, they would be entitled to their freedom in the absence of timely criminal prosecution.
This goes a long way to explain why Parliament invented suspension as a means of displacing the Act for short periods. And aware of its dramatic nature and having lived through a suspension that Parliament enacted in 1777 to govern Americans brought to English soil for detention during the American Revolution, the founding generation expressly limited the government’s power to declare a suspension solely to the “extreme emergencies” of Rebellion and Invasion.
As is well known, President Abraham Lincoln suspended habeas during the Civil War to legalize the detention of Confederate soldiers and their supporters outside the criminal process, first on his own and later with the blessing of Congress. Notably, Lincoln recognized that doing so was constitutionally required. Indeed, Lincoln asked what would have happened if, at the outset of the Civil War, the Union had arrested Confederate military leaders who were within Union grasp and known to be “traitors.” In response, Lincoln observed:
Unquestionably if we had seized and held them, the insurgent cause would be much weaker. But no one of them had then committed any crime defined in the law. Every one of them if arrested would have been discharged on Habeas Corpus, were the writ allowed to operate.
All of this explains what the Suspension Clause was supposed to achieve, and how it operated for much of American history. Of course, this understanding broke down on a massive scale with the imprisonment of over 70,000 Japanese American citizens during World War II. (As I highlight in my book, many key government actors, including Attorney General Francis Biddle, recognized at the time that their detention violated the Suspension Clause.) As one of its many tragic legacies, the Japanese American internment established a precedent that gutted the Suspension Clause and gave constitutional sanction to “a policy of mass incarceration under military auspices.” But the episode should instead be viewed for what it was: a giant wrong-turn in Suspension Clause jurisprudence.
This takes us back to the War on Terror and Hamdi, which gave jurisprudential sanction to the concept of a citizen enemy combatant. If one believes that historical evidence should inform constitutional interpretation, Hamdi is deeply problematic. As I argue in book, moreover, the decision is problematic even if one is not an originalist.
With respect to ACLU v. Mattis, if the court eventually reaches the underlying merits, the government surely will rely on Hamdi and likely also argue that the fact that the the government is detaining the prisoner extraterritorially calls into question the full application of the Constitution to his case. The court will then be left potentially to revisit Hamdi (as it should) and separately to assess the extraterritorial application of the Constitution as it speaks (or does not) to how the government interacts with its citizens overseas. The issues implicated on this score present a host of doctrinal and methodological complications, involving the intersection of Hamdi, Boumediene v. Bush, Munaf v. Geren, and the military spouse cases, including Reid v. Covert, among other matters.
With respect to the geographic sweep of the Suspension Clause, it bears highlighting that one of the animating purposes behind the English Habeas Corpus Act was Parliament’s desire to limit the crown from detaining prisoners beyond the seas—and specifically, beyond the reach of the English courts. Indeed, Parliament entitled its work “An Act for the better securing the Liberty of the Subject, and for preventing of Imprisonments beyond the Seas.”
In short, there are very serious underlying merits questions in ACLU v. Mattis. One way or the other, they deserve their day in court.