Cognitive Dissonance: The Constitution, Habeas, the Unitary Executive and Congressional Power

One of the infamous legal theories that has underpinned the abuse of the Constitution by the Bush Administration has been the Unitary Executive:

What does a "unitary executive mean . . . for Bush:
The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

But in order to distinguish the SCOTUS' Rasul decision in the recent Gitmo habeas case, the Bush Administration has disavowed implicitly the unitary executive theory. Yes, heads will spin.

To escape the statements of Rasul, the Bush Administration had to argue, unfortunately an argument accepted by the DC Circuit Court of Appeals, that the Constitutional right to the Great Writ did not territorially extend as far as the power of the Congress to grant right to petition for the writ of habeas corpus. That's because Rasul decided that the Congress did extend the right to the Great Writ to Gitmo.

What did the SCOTUS say about habeas in Rasul? This:

Habeas corpus is, however, “a writ antecedent to statute, ... throwing its root deep into the genius of our common law.” Williams v. Kaiser, 323 U.S. 471, 484, n. 2 (1945) (internal quotation marks omitted). The writ appeared in English law several centuries ago, became “an integral part of our common-law heritage” by the time the Colonies achieved independence, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973), and received explicit recognition in the Constitution, which forbids suspension of “[t]he Privilege of the Writ of Habeas Corpus ... unless when in Cases of Rebellion or Invasion the public Safety may require it,” Art. I, §9, cl. 2.

As it has evolved over the past two centuries, the habeas statute clearly has expanded habeas corpus “beyond the limits that obtained during the 17th and 18th centuries.” Swain v. Pressley, 430 U.S. 372, 380, n. 13 (1977). But “[a]t its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.” INS v. St. Cyr, 533 U.S. 289, 301 (2001). See also Brown v. Allen, 344 U.S. 443, 533 (1953) (Jackson, J., concurring in result) (“The historic purpose of the writ has been to relieve detention by executive authorities without judicial trial”). As Justice Jackson wrote in an opinion respecting the availability of habeas corpus to aliens held in U.S. custody:

“Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 218—219 (1953) (dissenting opinion).

Consistent with the historic purpose of the writ, this Court has recognized the federal courts’ power to review applications for habeas relief in a wide variety of cases involving Executive detention, in wartime as well as in times of peace. The Court has, for example, entertained the habeas petitions of an American citizen who plotted an attack on military installations during the Civil War, Ex parte Milligan, 4 Wall. 2 (1866), and of admitted enemy aliens convicted of war crimes during a declared war and held in the United States, Ex parte Quirin, 317 U.S. 1 (1942), and its insular possessions, In re Yamashita, 327 U.S. 1 (1946).

The question now before us is whether the habeas statute confers a right to judicial review of the legality of Executive detention of aliens in a territory over which the United States exercises plenary and exclusive jurisdiction, but not “ultimate sovereignty.”6

Respondents’ primary submission is that the answer to the jurisdictional question is controlled by our decision in Eisentrager. . . . [T]his Court summarized the six critical facts in the case:

“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; © 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.” 339 U.S., at 777.

On this set of facts, the Court concluded, “no right to the writ of habeas corpus appears.” Id., at 781.

Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

. . . Application of the habeas statute to persons detained at the base is consistent with the historical reach of the writ of habeas corpus. At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm,11 as well as the claims of persons detained in the so-called “exempt jurisdictions,” where ordinary writs did not run,12 and all other dominions under the sovereign’s control.13 As Lord Mansfield wrote in 1759, even if a territory was “no part of the realm,” there was “no doubt” as to the court’s power to issue writs of habeas corpus if the territory was “under the subjection of the Crown.” King v. Cowle, 2 Burr. 834, 854—855, 97 Eng. Rep. 587, 598—599 (K. B.). Later cases confirmed that the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of “the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown.” Ex parte Mwenya, [1960] 1 Q. B. 241, 303 (C. A.) (Lord Evershed, M. R.).14

Rasul was deciding precisely the effect of being detained in Gitmo, as was today's DC appeals court decision. And yet, this fact is blithely ignored by the DC Circuit panel:

[U]nder the common law [habeas corpus], the dispositive fact was not a petiotioner's alien enemy status, but his lack of presence within any sovereign territory.

The Supreme Court stated exactly the opposite. But of relevance to this diary is the necessary underpinning to this decision - that Congress has the power to extend the reach of the right to habeas beyond that granted by the Constitutution. From whence does this power spring? If we are to believe the Bush Administration's argument as to a unitary executive, the Congress could have no such power. Such power would clearly conflict with the argument that the President acting as Commander in Chief has plenary power. The Bybee Memo flatly stated:

Any effort by the Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the Commander in Chief authority in the President. . . . Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.

Granting habeas rights would seem to violate the Bybee statement. The limits of Congressional extraterritorial power is well discussed here.

But the frank truth is it is an absurdity to argue that the Constitution grants the Congress the power to extend territorially the right to petition for the Great Writ beyond that granted by the Constitution. The Great Writ was revered by the Founders. They took extraordinary measures to severely restrict Congress' power to suspend it. As Rasul ably demonstrated, the historic writ was available to any detainee held in territory controlled by the sovereign.

Only cognitive dissonance and dishonesty allow the Bush Administration and the DC Circuit panel to pretend otherwise. Only blatant disregard for judicial priniciples allows such patent disregard for the findings of the SCOTUS in Rasul. But such are the times we live in.

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    Agree and disagree (5.00 / 1) (#1)
    by Categorically Imperative on Wed Feb 21, 2007 at 04:02:13 PM EST
    You're right that the D.C. Circuit misreads Rasul; heck, the majority misreads St. Cyr and seems to want to pretend that it's already settled that the Suspension Clause only protects the writ as it existed in 1789.  I also agree that the unitary executive theory is incompatible with Congressional expansion of constitutional habeas (though the administration would probably argue that it's not being inconsistent; it NEVER agreed with Rasul).

    But, there's no absurdity inherent in the view that Congress can extend habeas rights beyond those inherent in common law/constitutional habeas.  It's analogous to Brennan's ratchet: the Constitution establishes a floor, but Congress may expand upon that floor.  I'm not sure this is the best interpretive view, but it's not a facially absurd one.

    Of course (none / 0) (#2)
    by Big Tent Democrat on Wed Feb 21, 2007 at 04:49:33 PM EST
    I am talking about the territorial reach, not the substantive reach.

    Territorial reach, too (none / 0) (#3)
    by Categorically Imperative on Wed Feb 21, 2007 at 05:05:22 PM EST
    I don't think it's absurd to think Congress could extend the territorial reach, either.  The "constitutional" territorial reach is really just the common law territorial reach of the writ.  Why can't Congress go further and extend, by statute, habeas rights to jurisdictions in which they didn't attach under the common law.

    Is it conceivable (5.00 / 1) (#5)
    by Big Tent Democrat on Wed Feb 21, 2007 at 08:06:48 PM EST
    that the Founders intended to NOT provide Constitutional protection to its furthest territorial reach, when the HISTORY of the Great Writ, as detailed in Rasul, extended the Writ to its furthest territorial reach?

    IT is conceivable to foresee extraterritorial application by the Congress of the Writ to reach say the foreign battlefield?

    Sorry, that makes no sense. Strong disagree with you there. I think that is babble to be honest with you.


    No, don't think that's conceivable (none / 0) (#7)
    by Categorically Imperative on Wed Feb 21, 2007 at 08:56:07 PM EST
    All I meant to say was that there's no reason to think Congress, today, could not go further (if it so chose) and extend habeas beyond even the furthest territorial reach of constitutional habeas.  That is, Congress could conceivably grant habeas rights to POWs captured on the battlefield and held in overseas military prisons.  I don't think 1789 habeas reaches that far (though I do think it reaches to GTMO).  Congress would never do such a thing, but it could if it so chose.

    In short, I read your original post to argue that there was something necessarily flawed, as a matter of legal logic, with assuming Congress could expand the territorial reach of habeas.  It's a nitpicky argument, for sure, but that's what I do best.


    BTW, (none / 0) (#4)
    by Categorically Imperative on Wed Feb 21, 2007 at 05:07:17 PM EST
    Funniest part of the decision is that it collapses on itself entirely.  Fn 8, if taken seriously, means the MCA doesn't apply...the MCA only strips statutory habeas from enemy aliens (or those awaiting a determination as to enemy alien status).  Thus, all the common law habeas scope discussion is irrelevant; for non-enemy aliens 2241 statutory habeas is unaffected by the MCA.

    One of the worst decisions ever (none / 0) (#6)
    by Big Tent Democrat on Wed Feb 21, 2007 at 08:07:26 PM EST
    Much worse than Robertson's effort.

    But isn't that a good thing? (none / 0) (#8)
    by dell on Thu Feb 22, 2007 at 08:14:01 PM EST
    In that a bad decision in the court below makes it more easy to get review above, and leaves the proponents of that side above less to work with.

    Better a rather chuckleheaded decision than one by, say, Roberts.