Habeas schmabeas.

The law, lawyers, and the court.
April 14 2004 4:02 PM

Habeas Schmabeas

The 60-year-old case that will decide Guantanamo.

(Continued from Page 1)

Black, the great civil libertarian, seems to have been quite outraged. A draft of his dissenting opinion includes a sentence noting acidly that the Germans were being punished for doing what "any patriotic American" would have done, had they been stranded far away from a defeated homeland. Douglas urged Black to take that language out, and it does not appear in the published version, which both Douglas and Burton joined. "Habeas corpus, as an instrument to protect against illegal imprisonment, is written into the Constitution," Black's opinion says. "I would hold that our courts can exercise it whenever any United States official illegally imprisons any person in any land we govern. Courts should not for any reason abdicate this, the loftiest power with which the Constitution has endowed them."

It's no surprise that Jackson's opinion is heavily quoted in the Bush administration's Guantanamo brief today—or that Black's dissent is reprised in the arguments raised by the detainees' legal teams. The legal principle at stake then and now is almost identical.

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But in what may prove crucial ways, the facts of the cases are dissimilar. Jackson wrote "that the Constitution does not confer … an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States." Yet, unlike the China-based Germans, the Guantanamo detainees do not seek to overturn the verdict in a trial against them; they are demanding one. Nor are the two Britons, two Australians, and 12 Kuwaitis who are contesting their detention at Guantanamo "enemy aliens" in the sense Jackson meant—i.e., citizens of nations with which the United States is at war. Though allegedly hostile to the United States themselves, they are all citizens of friendly countries.

Why might these distinctions make a difference? They are not indisputably related to the jurisdictional question now before the court, but it is difficult to believe the court will be as sanguine about denying habeas jurisdiction in the context of prisoners who have had nothing like the substantial judicial process Eisentrager and company enjoyed. In addition, although Guantanamo is clearly not as much a part of the United States as, say, the old Panama Canal Zone was, it is also clearly not as foreign as postwar China or occupied Germany. Thus, the court may conclude that the unusual extent and duration of U.S. control there could justify jurisdiction in that one place.

Even though they lost their case, Eisentrager and his co-defendants soon won their freedom. By 1950, the Truman administration was feeling pressure for leniency toward German war criminals; both within the United States and a fledgling West Germany, the argument was made that friction over war crimes prosecutions hurt U.S.-West German unity against the Soviet Union. Truman set up a clemency process that, continued by the Eisenhower administration, resulted in the emptying of the U.S. prison for German war criminals by 1958. In Eisentrager, ironically, the Truman administration won the legal authority to deal with German war criminals as it pleased, and then, for political reasons, used that authority to let them go.

The final lesson of Eisentrager may be that politics can succeed even where law fails. If today's Guantanamo detainees lose in the Supreme Court, they need not despair of ever being released. The day may come when friendly governments say "enough" with the same sort of impact that West Germans and other critics of that era's war-crimes process had half a century ago. Indeed, in the face of diplomatic pressure and public outrage in Europe over the "legal black hole" in Cuba, the Bush administration has already let two British citizens named in the case go back home—before it lost a single court ruling on Guantanamo.

Charles Lane is a staff writer at the Washington Post. This article is based on a longer discussion of the Eisentrager case, published in the Green Bag.

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