It has been quite common in the last decade, when difficult legal questions were raised about individual rights and judicial review—the rights, for example, of noncitizen military detainees at Guantanamo, or of U.S. citizens targeted with drone strikes in Yemen—to hear lawyers assert that centuries-old understandings, precedents, and practices support their arguments. For instance, in the Rasul and then the Boumediene litigation, lawyers and law professors supporting the detainees asserted that common law and constitutional principles dating back to the eighteenth century and even earlier clearly mandated that the detainees had a right to habeas review, while lawyers and law professors on the other side asserted the opposite.
I have a new article in the Columbia Law Review that challenges this notion that there has been continuity over time in the legal protections offered to individuals affected by national security and foreign affairs activities of the United States government. The article highlights changes over time in order to better understand what is distinctive about the current way that these topics are addressed in our legal culture, and to make some predictions about the future trajectory of the law.
Historically there were significant “legal black holes” in both U.S. law and international law—persons, places or contexts which were not protected by the law or courts. For example, noncitizens located outside the United States lacked protection from the Constitution. Enemy fighters wherever located lacked protection from the Constitution and other domestic laws, and were barred from accessing U.S. courts during wartime. International legal protections did not protect persons from their own governments, and did not protect peoples considered “savage” or “uncivilized” at all.
The existence of these legal black holes meant that historically the law about individual rights protection in foreign affairs and national security was centrally concerned with drawing lines, demarcating the boundaries between different domains. Since about the mid-twentieth century, and accelerating recently, this has changed. Legal black holes are closing, and foreign affairs and national security are less likely to be treated as legal domains distinct from ordinary law and judicial review. The importance of U.S. citizenship to protection under the Constitution and courts is decreasing, and formal barriers to legal protection and judicial review based on territorial location and war-time context are dissolving. The jurisprudence of categorization and boundary-marking is fading away, giving way to interest balancing and other methods of reasoning that are characteristic of domestic law. And the dissolution of the categorical approach is reflected in important changes to the institutions and practices of the U.S. government. My article attempts to document, describe and explain these phenomena.