by Fiss, Owen
Where does Guantánamo fit in this scheme? The Court put Guantánamo closer to the South Carolina side, and was quite right in this judgment. The 45-square-mile area occupied by the Guantánamo Naval Base may, in some formal sense, belong to Cuba, but it is a territory over which the United States has exercised exclusive control for a century and has the right to do so forever. It is de facto part of the United States. If the Court did not conceive of Guantánamo in this way, it is not clear to whom the prisoners might turn to challenge their detention. Their representatives might bring a legal proceeding in the country of their citizenship, but because they are being held in Guantánamo, not Kuwait or Australia, the courts of the countries of which they are citizens would not have the power or jurisdiction over the United States to order their release. As one English jurist, writing extrajudicially, put it, a legal black hole would have been created.29
To appreciate the risks of such a black hole, we need only consider the opinion of the lower court in Rasul. Although the Supreme Court overturned the Court of Appeal’s holding, it did not directly contradict the lower court’s view of the constitutional rights of Guantánamo detainees. That is because the Supreme Court discussed the status of Guantánamo in the context of interpreting the habeas statute. By contrast, the Court of Appeals, which had held that the district court did not have jurisdiction to hear the prisoners’ petitions, approached the problem from another perspective. Instead of starting with the statutory question of jurisdiction, the Court first looked to whether the prisoners had any underlying constitutional rights. The Court of Appeals read the prevailing Supreme Court precedents to mean that if the prisoners were held by United States agents in another country—even one that was not a battlefield, say, Yemen—they would have no constitutional rights. The Court of Appeals was also of the view that Guantánamo was not part of the sovereign territory of the United States but rather like Yemen. Having reached this point in its analysis, the habeas proceedings made little sense to the Court of Appeals, even if the prisoners were, as a purely technical matter, deemed to be within the jurisdiction of the district court. As the Court of Appeals explained, “We cannot see why, or how, the writ may be made available to aliens abroad when basic constitutional protections are not.”30
In contrast, the Supreme Court first examined the statutory jurisdiction of the habeas court and in that context concluded that Guantánamo should be treated as part of the United States. It never reached the issue of what constitutional rights the prisoners enjoy and thus failed to engage the major premise of the Court of Appeals and the government. Seen in this way, Justice Stevens’s opinion is not only a tribute to judicial minimalism but also a contrived effort to make the case seem easier than it is—as though all that is at stake is a technical dispute over the jurisdictional requirements of § 2241.
Justice Stevens was fully aware that in order to issue the writ under § 2241, the district court not only must have jurisdiction over the petition but must also determine that the detention violates the Constitution or laws of the United States. Of course, for the prisoners to have their constitutional rights violated, they must have constitutional rights in the first place. If the suit were filed by a United States citizen detained in Guantánamo, this would not be much of an issue because American citizens enjoy the protection of the Bill of Rights no matter where they are held, whether it be Guantánamo or Yemen or maybe even Afghanistan or Iraq (though in the latter cases adjustments should be made for the needs of the battlefield). But what about the constitutional rights of aliens, like the petitioners in Rasul, who never resided in the United States and had no other connection to it?
Justice Stevens addressed this question only in the most incidental way. In a footnote (note 15 of the opinion) he lists five allegations that, if true, would render the detention of the prisoners before him, as he put it, “unquestionably” unconstitutional or otherwise a violation of the laws or treaties of the United States: (1) the prisoners were not enemy combatants; (2) they were imprisoned for more than two years; (3) they were held in a territory subject to the long-term, exclusive jurisdiction of the United States; (4) they had no access to counsel; and (5) they were not charged with a crime.
The meaning of this footnote is not at all clear. Not surprisingly, when the case returned to the trial level, two judges in the District Court for the District of Columbia, each presiding over different proceedings, read it differently. One judge granted the government’s motion to dismiss the habeas petitions, concluding that the prisoners’ reliance on footnote 15 was “misplaced and unpersuasive.”31 According to this judge, the Supreme Court “did not concern itself with whether the petitioners had any independent constitutional rights.”32 He further concluded that based on prior doctrine the prisoners had no underlying constitutional rights. This meant that although the prisoners had a statutory right to file a habeas petition—they had the right to file a piece of paper—the legal proceeding was of no practical import.
The other district judge denied the government’s motion to dismiss.33 On her reading, footnote 15 established that the prisoners had the same constitutional rights that they would have had if they were being held in Charleston—not a right to have a federal court ascertain their status as enemy combatants, for even Hamdi did not have that right, but presumably a right to a hearing before some impartial tribunal with the assistance of counsel. On this interpretation, the prisoners in Guantánamo—nationals of Australia and Kuwait—would be given the same rights as Hamdi.
This latter reading of footnote 15 would move the law in the right direction, but even with this gloss the footnote remains troubling. First, it does no more than give the nationals of foreign countries a right to fair procedure to ascertain whether they are in fact enemy combatants; it does not afford them any of the substantive protections of the Constitution, including the right to freedom or any other rights embraced within the Bill of Rights, most notably the protection against cruel and unusual punishment. Second, this reading of footnote 15 makes location crucial, specifically, the fact that the prisoners are being detained in Guantánamo, which has been under the exclusive control of the United States for more than a century. The Rasul prisoners are granted some protection, but those who are being held abroad—in Yemen, not to mention countries we are occupying by force of our military power—could not claim the protection of the Constitution.
Sadly, this limitation in the law would mean that the prisoners abused and tortured by the U.S. military authorities in Iraq at the Abu Ghraib facility—fully disclosed to the world only weeks before the Supreme Court’s decision in Rasul—could make no constitutional claims against the United States. In the months following this disclosure, Congress and the president apologized to the victims of torture at Abu Ghraib. The line officers immediately responsible for the torture have been disciplined. Victims of such abuse might even advance claims under various federal statutes.34 But they cannot, within the terms of settled doctrine, claim that officials of the United States violated the basic law of the nation—and that, in my view, is most unfortunate. Although it was no part of the business of the Supreme Court in Rasul to address the abuses in Abu Ghraib—the Court left the law where it found it—those events throw into bold relief the limitations of what the Rasul Court did in fact decide.
Footnote 15 ends with a reference to United States v. Verdugo-Urquidez35—one of the defining Supreme Court decisions of the modern period, and one of the cases upon which the Court of Appeals placed significant weight. United States v. Verdugo-Urquidez was decided in 1990—more than a decade before the Bush administration launched its War on Terror and invaded Afghanistan and then Iraq. The immediate context was a war of another type—the War on Drugs. But Chief Justice Rehnquist, the author of the Court’s opinion, also expressed an interest in freeing the executive from the shackles of the Bill of Rights in foreign military operations.36 To that end, he denied the protection of the Fourth Amendment, and, perhaps, the entire Bill of Rights, to aliens
living abroad.
René Martín Verdugo-Urquidez was a citizen of Mexico, and the alleged violation of his rights occurred in Mexico. Federal drug enforcement agents, working with Mexican officials, searched his home in Mexico without a warrant and in the course of those searches seized certain documents. Prior to the search, Verdugo-Urquidez had been arrested by Mexican authorities, transported to the Border Patrol station in Southern California, and then turned over to United States marshals. He was accused of being one of the leaders of an organization in Mexico that smuggled narcotics into the United States and was placed on trial in the United States for violating federal criminal statutes. In the course of the trial, Verdugo-Urquidez moved, on the basis of the Fourth Amendment, to exclude the evidence seized in the raid on his Mexican residence. The Supreme Court held that the Fourth Amendment does not apply to a search by United States agents of a residence that is located in a foreign country and owned by an alien who did not reside in the United States and who did not otherwise voluntarily attach himself to the national community.
On a purely technical level, the Court’s ruling was presented as a construction of the phrase “the people” as it appears in the Fourth Amendment. The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Although the term “the people” seems to be of universal scope, permitting no distinction between citizens and aliens, Chief Justice Rehnquist construed the phrase as a term of art that embraced only (a) citizens and (b) those aliens who have developed a sufficient voluntary connection with the United States to be considered part of the national community. Granted, Verdugo-Urquidez was being imprisoned in the United States, and tried in federal court for violating federal statutes, but this was not sufficient for Rehnquist to place him within the scope of “the people” protected by the Fourth Amendment.
Justice William Brennan dissented. In his dissent, he convincingly showed that no evidence, either in the debates or in the general history surrounding the adoption of the Bill of Rights, indicates that the phrase “the people” in the Fourth Amendment was meant to delineate a class of beneficiaries who would be protected by the amendment. The phrase “the people” was not a term of art but rather, he insisted, merely a rhetorical device to underscore the importance of the protection being granted. Justice Brennan also advanced a more cosmopolitan view of the Constitution, according to which the actions of the United States would be governed by the Constitution no matter where or against whom the United States acts. Brennan acknowledged that the meaning of the Constitution may vary from context to context; what the Fourth Amendment ban on unreasonable searches means in a suburban community in the United States differs from what it means on the battlefield or, for that matter, in a country that we occupy by virtue of our military power. But the actions of American officials would, according to Justice Brennan, always and everywhere be judged by the standards of the Constitution.
To defend his cosmopolitanism, Justice Brennan relied on the principle of mutuality: “If we expect aliens to obey our laws, aliens should expect that we will obey our Constitution when we investigate, prosecute, and punish them.”37 Such a principle seems unable to encompass all that Justice Brennan wanted—he was explicit that the Fourth Amendment applies to military activities abroad (though in such cases he would drop the warrant requirement and test the government’s action only by the reasonableness requirement, which is necessarily sensitive to context). The principle of mutuality also suffers from circularity, for the question is whether the government’s action constitutes a violation of the Constitution. Justice Brennan may well be right in proclaiming that “lawlessness breeds lawlessness,”38 but we cannot invoke that axiom to determine whether the government has acted lawlessly.
A more plausible account of Justice Brennan’s cosmopolitanism, of great sway in the Warren Court era, identifies the nation with the Constitution and underscores the constitutive nature of that all-important law: the Constitution creates the structure of government and defines the limits of its authority.39 The constitutive view of the relationship between the nation and the Constitution not only reflects how the founders understood their project but also, and perhaps more important, accords with the practice of constitutional adjudication over the last two hundred years. The doctrine of enumerated powers, the keystone of constitutional adjudication in the nineteenth century, was premised on the view that Congress had no authority other than that granted to it by the Constitution. In the twentieth century, the first question of constitutional adjudication shifted from whether the Constitution had granted the power to Congress to whether Congress or some other officer of the United States violated a particular constitutional prohibition. Still, it was assumed that the prohibitions on the government defined the outer limits of its authority and that, as a juridical entity, the government of the United States has no existence outside of the Constitution.40
The limits on government authority can be derived from the terms upon which power was conferred on the new government, from certain prohibitions on the government contained in the body of the Constitution—notably Article IV—and, above all, from the amendments to the Constitution adopted in 1791, the Bill of Rights. For the cosmopolitan, the Bill of Rights is conceived not as a testamentary document distributing a species of property to specific and limited classes of persons but rather as a broad charter setting forth the norms that are to govern the operation of government. “No person shall be deprived of life, liberty, or property without due process of law.” “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” “Cruel and unusual punishment shall not be inflicted.” For the cosmopolitan, rights are not property belonging to particular people but are the concretization of these sweeping prohibitions of the Constitution.
This view of rights does not necessarily give the protections of the Constitution the universal scope that Justice Brennan desired. It still remains for the Court to apply the norm in some specific case, and that necessarily entails a process of interpretation. The history or wording of the norm may delimit its scope, and the context will also determine the content of the right. All that can be said is that this way of viewing rights—as norms, not property—more easily accommodates cosmopolitanism and is more conducive to that orientation. It makes it more difficult for a justice to claim, as Chief Justice Rehnquist did in Verdugo-Urquidez, that the Fourth Amendment affords protection only to citizens or those who voluntarily associate themselves with the national community. It renders the effort to limit the Bill of Rights in this way more implausible, and suggests that those limits are not based on a strict interpretation of the text but on more extraneous or political considerations, such as giving the executive the flexibility Chief Justice Rehnquist believes is necessary to conduct foreign affairs effectively.
Chief Justice Rehnquist ended his opinion in Verdugo-Urquidez by proclaiming, “For better or for worse, we live in a world of nation-states.”41 The importance of the nation-state cannot be denied, even today, in the face of ever-increasing globalization. The cosmopolitan view of the Constitution does not, however, deny the importance of the nation-state but offers an alternative and, in my view, more appealing way of understanding the relation between the Constitution and the nation. Of course, noncitizens do not vote, and thus are not politically empowered to demand that the government justify its actions to them. But that does not mean that the government owes them no duties, as is indeed clear from the treatment of noncitizens who are residents of the country. They too cannot vote but are protected by the Constitution. Similarly, although the government does not act in the name of noncitizens, those in whose name it does act—“we the people”—may demand t
hat it proceed in a certain way whenever it acts and regardless of against whom it acts.42 The key provisions of the Bill of Rights—including but in no way limited to the Fourth, Fifth, and Eighth Amendments—present themselves as universal prohibitions and, as such, may be read as an expression of the demands by the founding generation as to the way the government they were creating must act.
Everyone who resides in the United States, aliens and citizens alike, are expected to obey the laws of the United States, and can be called upon to lend support to the government, through, say, the payment of taxes and perhaps even serving in the military. Yet, as is evident from the rules regarding the rights of those who flout the law, and who we can assume are justly convicted of doing so, the protection of the Constitution is not in any way limited to those who obey the laws or otherwise support the government. The obligations imposed on the government by the Bill of Rights are not a quid pro quo offered to its subjects but the expression of principles of right behavior.43
Chief Justice Rehnquist and Justice Brennan occupied polar positions in Verdugo-Urquidez. Justices Scalia, Thomas, and O’Connor joined Chief Justice Rehnquist’s opinion without comment. Justice Thurgood Marshall joined Justice Brennan’s opinion in a similar fashion. The remaining three justices—John Paul Stevens, Harry Blackmun, and Anthony Kennedy—were arrayed between the poles. None of these three believed that only those persons who voluntarily affiliated themselves with the national community were protected by the Fourth Amendment. Justices Blackmun and Stevens stressed the fact that Verdugo-Urquidez had been placed on trial in the United States for violating its criminal laws, and, as a result, the Fourth Amendment was applicable. Justice Blackmun dissented because, although he agreed with Chief Justice Rehnquist that there was no need for a warrant to search the residence of an alien outside the country, he insisted that to be valid under the Fourth Amendment the search must be reasonable. Blackmun thought that the case should be remanded to the lower court to make the reasonableness determination. Justice Stevens, like Justice Blackmun, applied the reasonableness standard but on the record before him thought there was sufficient basis to conclude that the search of Verdugo-Urquidez’s house was reasonable. He concurred in the judgment.