The sixth sense

This morning the Supreme Court agreed to hear two cases (Rafiq v. Bush and Al Odah v. United States) raising the question, “Whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba.”
The position of the Bush administration is that the federal courts lack suck jurisdiction. As with virtually all such critical legal issues in the war on terrorism, the administration’s position falls right within the heart of applicable legal precedent and the lower federal courts have agreed with the position of the adminstration on the issue involved. The controlling case on the issue before the Court in these cases is Johnson v. Eisentrager, a 1950 Supreme Court case involving German espionage agents captured in China at the end of World War II.
Law professor Eugene Volokh confidently predicts that the Supreme Court will follow precedent and disclaim the existence of federal jurisdiction to adjudicate the legality of detaining enemy combatants captured abroad. Professor Volokh is a brilliant legal analyst and I certainly have no basis to dispute his prediction. I wonder, however, why the Supreme Court agreed to hear these cases, cases that on their face raise the least substantial of the war-related legal issues working their way through the federal courts.
Chief Justice Rehnquist has some kind of a sixth sense that has led him to write books on the highly unusual issues that his official duties have brought before him. In 1992 he published Grand Inquests, a book about the impeachment trials of Samuel Chase and Andrew Johnson, six years before he himself was called to preside over the impeachment trial of President Clinton.
In 1998 he published All the Laws But One, a legal history of civil liberties in wartime, three years before the United States was attacked on its own soil. It is an excellent book. Contrary to what one would think based on newspaper accounts of Rehnquist and his jurisprudence, it is not entirely sympathetic to legal precedent authorizing the suppression of civil liberties in wartime. Based on my reading of that book, I believe that Rehnquist would love to redress the existing balance in favor of judicial deference to the executive branch on civil liberties issues in wartime.
The last chapter of All the Laws But One is titled “Inter arma silent leges,” the Latin maxim that “the laws are silent in wartime.” Rehnquist concludes the chapter: “It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime. But it is both desirable and likely that more careful attention will be paid by the courts to the basis of the government’s claim of necessity as a basis for curtailing civil liberty. The laws will thus not be silent in time of war, but they will speak with a somewhat different voice.”
Even if my reading of Rehnquist is right on this score, Rehnquist’s predisposition would be least likely to affect his view of the role of the federal courts vis a vis the detention of enemy combatants captured abroad. But I lack Professor Volokh’s confidence that the outcome is foreordained by Eisentrager.


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