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Abstract:
The jurisdiction of the federal courts to consider habeas petitions brought by detainees held as part of the war on terrorism has been a popular topic to courts and commentators alike. Little attention has been paid, however, to whether the Constitution itself interposes any jurisdictional limits over such petitions. In two recent cases, the U.S. government has invoked the Supreme Court's obscure (and obtuse) 1948 decision in Hirota v. MacArthur for the proposition that Article III forecloses jurisdiction over any petition brought by a detainee in foreign or international custody, including that of the Multinational Force - Iraq. Thus, on the government's view, Hirota precludes access to the courts even for U.S. citizens tortured at the behest of the U.S. government overseas.

This Article takes on that argument, along with the citizenship-based distinction that these courts have thus far drawn to distinguish Hirota, and explains why Article III imposes no such bar, even where the detainee is not a U.S. citizen. Instead, Article III only bars such a petition if the detainee is not in the actual or constructive custody of the United States. It concludes that the distinction that courts have drawn in the current cases is not only untenable, but is indicative of the deeper flaw in Hirota - as based on a badly misplaced conception of the relationship between Article III, citizenship, and habeas corpus, obfuscating the more important debate over the scope of the substantive rights enforceable through the Great Writ.

Hirota, habeas corpus, federal jurisdiction, extraordinary rendition, Article III, war crimes, IMTFE

Abstract:
The jurisdiction of the federal courts to consider habeas petitions brought by detainees held as part of the "war on terrorism" has been a popular topic to courts and commentators alike. Little attention has been paid, however, to whether the Constitution itself interposes any jurisdictional limits over such petitions. In two recent cases, the U.S. government has invoked the Supreme Court's obscure (and obtuse) 1948 decision in Hirota v. MacArthur for the proposition that Article III forecloses jurisdiction over any petition brought by a detainee in foreign or international custody, including that of the "Multinational Force - Iraq."

This Article takes on that argument, along with the citizenship-based distinction that these courts have thus far drawn to distinguish Hirota, and explains why Article III imposes no such bar, even where the detainee is not a U.S. citizen. Instead, Article III only bars such a petition if the detainee is not in the actual or constructive custody of the United States. It concludes that the distinction that courts have drawn in the current cases is not only untenable, but is indicative of the deeper flaw in Hirota - as based on a badly misplaced conception of the relationship between Article III, citizenship, and habeas corpus, obfuscating the more important debate over the scope of the substantive rights enforceable through the "Great Writ."

hirota, habeas corpus, federal jurisdiction, extraordinary rendition, article iii, war crimes, imtfe

Abstract:
In Ex parte Merryman, Chief Justice Taney famously rejected President Lincoln's power to unilaterally suspend the writ of habeas corpus in and around Baltimore at the outset of the U.S. Civil War. According to Taney, only Congress can provide for suspension of the writ, and Congress had not so provided. Just one year later, though, the Vermont federal circuit court held, in Ex parte Field, that the suspension of habeas corpus is necessarily coincident to the imposition of martial law. Because President Lincoln had the statutory authority to impose martial law by virtue of the so-called Militia Acts, Field concluded, Congress had effectively, if not explicitly, given sanction to Lincoln's suspension of habeas in those areas where martial law was validly in force.

This Article attempts a thorough reconstruction of the Field theory, beginning with the facts of Merryman itself before moving to the pre-Civil War precedents on which the decision in Field relied. As it concludes, the President's authority to impose martial law in crisis situations does in fact derive from the Militia Acts, and there is at least a colorable argument that Baltimore was under martial law at the time Merryman was decided. More importantly for present purposes, though, the Article analyzes the deep and profound questions as to the substantive preconditions for the imposition of martial law through the lens of the modern-day Insurrection Act, concluding that the statutory framework, in current form, does not adequately demarcate the point past which martial law is appropriate. Because Congress has the power to provide for the calling forth of the military to respond to domestic crises, Congress can provide for greater accountability - especially at the end of the next emergency - and, the Article concludes, Congress should do so.

Merryman, Taney, Lincoln, martial law, martial rule, habeas corpus, civil war, emergencies, Andrew Jackson, Dorr

Abstract:
In Hamdan v. Rumsfeld, the U.S. Supreme Court held that military tribunals established by President Bush were unlawful because they were inconsistent with the Uniform Code of Military Justice, concluding that, Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. Moreover, the Court reached this conclusion notwithstanding debates in recent years over the Commander-in-Chief override, and the considerable questions as to Congress's power to interpose substantive limitations on the President's war powers.

In this Essay, I compare the rationale behind Justice Stevens's majority opinion in Hamdan with two early Supreme Court decisions - Little v. Barreme and Brown v. United States - and suggest that Hamdan is, or at least appears to be, the reaffirmation of a formalist approach to separation of powers cases in fields where Congress has legislated. Thus, although the key passage from Hamdan cites Justice Jackson's canonical concurrence, the logic of the opinion is more comparable to the forgotten concurrence of Justice Clark.

But the harder question is whether Hamdan's separation-of-powers formalism is anything more than sui generis. Thus, the Essay concludes by suggesting that the common thread, in Little, Brown, Youngstown, and Hamdan, is the strength of the textual argument in favor of Congress's regulatory power. After Hamdan, then, courts and commentators alike may well need to pay far closer attention to the specific congressional powers implicated in each case where the Executive Branch argues that Congress cannot interfere.

Hamdan, separation of powers, war powers, military tribunals, Youngstown, Commander-in-Chief, presidential power, wiretapping

Abstract:
Courts have traditionally had excessively little to do with adjudicating inter-branch debates over the temporal extent of the war power, the starkest example of which is the Supreme Court's 1948 decision in Ludecke v. Watkins. Ludecke stands for the proposition that, regardless of the situation on the ground, a "war" does not "end" until the political branches say that it does.

This paper seeks to explain both the dubious doctrinal origins of this principle, and how it has manifested itself in the various cases arising out of the Bush Administration's response to the September 11 terrorist attacks, most notably the Supreme Court's decision last Term in Hamdi v. Rumsfeld. As the paper argues, although it is undeniable that terrorism will pose a threat to our national security continuously over the coming years and decades, the war powers the Constitution vests in Congress and the President were never meant to have indefinite operation.

Nevertheless, in light of the broad deference-based principles at the heart of Ludecke, and the Supreme Court's complete unwillingness to confront the potential indefiniteness of the struggle against terrorism in Hamdi, this paper suggests that an alternative, non-judicial remedy to the indefinite war problem is necessary, and explores legislative sunsets as one possible solution. Terrorism may indeed be a new kind of war, but if that is so, then the response should be a new kind of war powers - and most pointedly not the permanent exercise of the President's traditional, temporary authority to conduct traditional, temporary wars.

terrorism, hamdi, national security, ludecke, padilla, al qaeda, sunsets, war, separation of powers, guantanamo

Abstract:
The central point of disagreement between the majority and dissenting opinions in the D.C. Circuit in Boumediene v. Bush, the latest in a series of challenges to the detention of non-citizen enemy combatants at Guantánamo Bay, Cuba, is the question whether the Constitution's Suspension Clause applies in Guantánamo. In this symposium essay, I argue that both sides of the current debate are focusing on the wrong question because of a deeply rooted historical misunderstanding of the Suspension Clause. Retracing the original understanding of the Clause, the essay argues that the Suspension Clause was meant as a grant of authority to Congress to suspend the writ of habeas corpus in certain circumstances, rather than as a constraint on Congress's power thereto. As such, the Clause delineates the only circumstances wherein Congress may abridge the otherwise-available common law writ of habeas corpus.

The problem, as the essay retraces, comes from reading together the Supreme Court's decisions in Ex parte Bollman (1807) and Tarble's Case (1872), the former of which precluded common-law habeas corpus in the federal courts, and the latter of which denied state courts the authority to issue habeas petitions against federal custodians. As I argue, although each decision is defensible on its own merits, together, they produce a constitutional conundrum vis-a-vis Congress's power over habeas corpus, and one that should limit Congress's power to completely preclude federal habeas jurisdiction over claims cognizable at common law to those cases authorized by the Constitution, i.e., Cases of Rebellion or Invasion [when] the public Safety may require it.

habeas, guantanamo, boumediene, suspension clause

Abstract:
Much has been made recently of the charge by federal judges that law reviews have become all-but-irrelevant to contemporary judicial decisionmaking, and that, as Second Circuit Judge Robert Sack put it, even when judges do use law reviews today, they use legal scholarship the same way drunks use lampposts - for support rather than illumination.

This short essay - prepared for the debut of CONNtemplations, the online companion to the Connecticut Law Review - considers the possible role that the ever-shrinking scope of judicial discretion may have on the ability of jurists today to rely upon legal scholarship. Although the recent trend toward the cabining of judicial discretion cannot fully account for the extent to which judges are finding law reviews increasingly inaccessible, the essay suggests that far more attention should be paid to the effects vis-a-vis legal scholarship of this well-documented trend toward more rigid judicial decisionmaking.

Moreover, to whatever extent that there is a correlation between the decline of judicial discretion and the growing complaints that legal scholarship is irrelevant and inaccessible, the essay suggests that online companions, such as CONNtemplations, may help make legal scholarship more accessible to those in the best position to use it - to practitioners.

Abstract:
At the core of Justice Kennedy's majority opinion in Boumediene v. Bush are his repeated suggestions that habeas corpus is an integral aspect of the separation of powers, and that, as such, the writ remains relevant even when the individual rights of those who would seek its protections are unclear. And whereas some might view these passages as little more than rhetorical flourishes, it is difficult to understand the crux of Kennedy's analysis - of why the review available to the Guantanamo detainees failed to provide an adequate alternative to habeas corpus - without understanding the significance of his separation-of-powers discussion. At least where habeas corpus is concerned, it seems clear from Boumediene that the purpose of judicial review, in Justice Kennedy's view, appears to be as much about preserving the role of the courts as it is about protecting the individual rights of the litigants.

In this article, I take on this quiet theory behind Kennedy's opinion and ask whether it might have applications beyond the unique context of habeas corpus, especially with regard to the more general constitutional right of access to the courts. As I argue, there is actually much to gain from re-conceptualizing access to courts as being as much about protecting the courts as it is about vindicating the individual rights of litigants, a theme largely reflected (although since forgotten) in the judicial decisions giving rise to modern access-to-courts jurisprudence. Thus, going forward, Boumediene might do more than just answer the circumstance-specific question about habeas corpus rights for non-citizens detained as enemy combatants; it might provide the starting point for a new theory of access to the federal courts in particular that could allow us to rethink a number of tenets of federal courts doctrine.

Abstract:
In his dissent in INS v. St. Cyr, Justice Scalia raised what remains perhaps the most perplexing question concerning Congress's power over the habeas corpus jurisdiction of the federal courts: if Congress never had to create a statutory cause of action for habeas corpus in the first place, how could a statute purporting to divest the federal courts of jurisdiction over certain habeas petitions violate the Constitution's Suspension Clause? As Scalia suggested, "[i]f . . . the writ could not be suspended within the meaning of the Suspension Clause until Congress affirmatively provided for habeas by statute, then surely Congress may subsequently alter what it had initially provided for, lest the Clause become a one-way ratchet."

In drawing parallels between the Supreme Court's mandamus and habeas jurisprudence, this short essay explains how Justice Scalia's one-way ratchet is actually a misnomer, and is instead the result of a trap Congress unknowingly set for itself. To give away the punch-line, a series of early nineteenth-century cases concerning the common-law writ of mandamus illustrates a point lost on conventional courts and commentators alike: the constitutional problem raised by habeas-stripping statutes does not arise from their constriction of the jurisdiction of the Article III courts. The problem is that a separate (and completely neglected) Act of Congress constrains the power of the one court that would otherwise be left to hear a federal detainee's habeas petition absent Article III review: the Superior Court of the District of Columbia. And although the analysis contained herein might strike the reader as pedantic (if not entirely semantic), such a conclusion has significant implications for sorting out the competing viewpoints in the continuing debate over Congress's power to restrict access to the writ of habeas corpus.

habeas, habeas corpus, mandamus, guantanamo, scalia, suspension clause

Abstract:
The Supreme Court's decision in Swain v. Pressley, 430 U.S. 372 (1977), is routinely cited for the proposition that the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus. Thus, in the habeas petitions filed by Guantanamo detainees currently before the Supreme Court, one of the central questions is whether the substitute remedy provided by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 is neither inadequate nor ineffective to test the legality of . . . detention.

Surprisingly, though, for as central a role as Pressley may yet come to play in the current cases, exceedingly little has been written about the decision, and there are no sustained academic treatments of Justice Stevens's cryptic holding. This symposium essay attempts to remedy that defect, analyzing Pressley in light of the precedent upon which it relied (the Court's 1952 decision in United States v. Hayman, upholding 28 U.S.C. § 2255), before moving to how Pressley came to be understood after it was decided. As the essay argues, critical to the Court's decision in Pressley (as in Hayman) was statutory language providing that, should the alternative remedy prove to be inadequate or ineffective, habeas corpus would remain available. Thus, courts interpreting the statutes upheld in Hayman and Pressley never had to choose between concluding that the remedy was adequate and effective and striking down the statute as violating the Constitution's Suspension Clause.

As the essay concludes, the myth of Swain v. Pressley, then, is that it provides useful criteria for assessing statutory substitutes for habeas corpus that do not include similar safety valves. Quite to the contrary, as a series of cases under the REAL ID Act of 2005 help illuminate, Pressley ultimately distorts courts' analysis of the adequacy of the substitute remedy, and will therefore likely be of little practical utility to the Supreme Court in the current cases.

habeas corpus, detention, guantanamo, terrorism, remedies, swain v. pressley

Abstract:
The tension inherent in the study of federal jurisdiction and the federal courts is perhaps best understood as the result of attempts to effectuate two often irreconcilable commands: First, that federal courts are courts of limited subject-matter jurisdiction; second, that they nevertheless have a virtually unflagging obligation . . . to exercise the jurisdiction given them. Increasingly, in recent years, this tension has manifested itself as a sharp divide between the U.S. Supreme Court and the lower federal courts over the scope of various explicit (or implicit) doctrinal and statutory exceptions to the federal jurisdiction conferred by general jurisdictional statutes such as 28 U.S.C. §§ 1331, 1332, and 1334. In a pattern that has come to repeat itself time and again, the lower courts have consistently favored applicability of these exceptions, with the Supreme Court, often unanimously, reversing in favor of original federal jurisdiction. This Article explores that trend through the lens of the Supreme Court's 2004 and 2005 Terms, and considers various theories for why the Court may be consistently moving toward a broader conception of federal subject-matter jurisdiction. As the Article concludes, much of what may be behind these decisions is the Supreme Court's frustration with lower-court overreactions to the new jurisdictional formalism that resulted from the Court's 1998 decision in Steel Co. v. Citizens for a Better Environment, a decision the full effects of which we are still assessing almost a decade later.

federal jurisdiction, probate exception, rooker-feldman, formalism, Hamdan

Abstract:
Since September 11, calls for a hybrid national security court to handle special terrorism cases have taken on a new-found prominence, as courts and policymakers alike have struggled with the complex series of legal and logistical problems posed by the U.S. government's detention of enemy combatants, especially the hundreds of non-citizens so detained at Guantanamo Bay, Cuba. National security courts are, for many, an increasingly attractive compromise solution to the seemingly irreconcilable division between those who believe that terrorism suspects are not entitled to the traditional criminal process and those who believe not only that they are, but that any other system is categorically unconstitutional. And in the aftermath of the Supreme Court's landmark decision in Boumediene this June, holding that the Guantanamo detainees have a constitutional right to petition the federal courts for writs of habeas corpus, such a compromise solution has become all the more appealing, given both the judicial review that Supreme Court's decision mandates and the complexity of the issues that it nevertheless leaves unresolved.

As popular as such proposals have been, though, there has been little sustained discussion of their details - which have seldom been fleshed out. Even with respect to those calls for national security courts including some discussion of the specifics, the proposals vary widely both substantively and procedurally. For example, some proponents have called for national security courts for detention decisions - i.e., to review whether a particular terrorism suspect can be held as an enemy combatant without criminal charges. Others have called for such tribunals as a forum in which to criminally prosecute suspected terrorists - i.e., as an alternative either to the traditional Article III criminal process or to trial by military commission pursuant to the controversial Military Commissions Act of 2006. Whatever the merits of each individual proposal, little has been written about the broader implications of such a third way.

In the paper that follows, I attempt to provide a comprehensive introduction to the various proposals for a national security court and to both their pros and their cons. Ultimately, I argue that proposals for national security courts are dangerously myopic proxies for larger debates that must be resolved first, including, most prominently, the debate over the extent to which the government should be able to detain terrorism suspects without trial, and the equally significant definitional question of just who qualifies as such an individual. Until and unless meaningful progress is made on these issues, calls for national security courts are little more than form without substance.

terrorism, Guantanamo, national security courts, detention, military tribunals

Abstract:
The debate over the proper balance between national security and freedom of the press has increasingly focused on the media's potential criminal liability for publishing sensitive information, as was threatened after the New York Times and the Washington Post disclosed the U.S. government's secret and warrantless wiretapping of domestic phone calls. With the issue of press liability for the publication of national security information, however, comes a bevy of difficult questions concerning the scope of the protections afforded to the press under the First Amendment.

This Essay attempts to survey these questions in light of the absence of an overarching framework statute, akin to England's Official Secrets Act, that in clear and sweeping terms specifies the means and manner in which the press may be held criminally liable for publishing sensitive information. As this Essay explains, the statutory framework governing the complicated balance between governmental secrecy and the freedom of the press in the United States is little more than a disorganized amalgamation of unconnected provisions. Some of the provisions overlap and border on redundancy. Others are difficult to parse, and cannot possibly prohibit what their plain language appears to suggest. Still others, when read together, seem to promote mutually inconsistent policy goals.

Yet, because the Espionage Act prohibits even the possession of sensitive national security information, one of the most important questions, going forward, is the potential liability reporters face for newsgathering, as opposed to reporting, in the national security field. And because the Press Clause has not traditionally been understood to protect actions short of publication, the real threat to the freedom of the press, this Essay suggests, is the openendedness of the relevant statutes when read together with theories of inchoate liability.

Espionage Act, inchoate liability, press, First Amendment, media, AIPAC, newsgathering

Abstract:
A frequent refrain in the contemporary debate over the role of the federal judiciary in the war on terrorism is that the courts have never before been open during wartime to individuals identified by the Executive Branch as enemies. By so thoroughly involving themselves in the current disputes, critics allege that the federal courts have become unwitting accomplices in lawfare by questioning - and sometimes invalidating aspects of - the Bush Administration's conduct of (and in) the war on terrorism.

Although I elsewhere attempt to assess (and critique) the more theoretical implications of this view, the purpose of this symposium essay is to demonstrate, based upon a largely unexplored body of case law, that this conventional wisdom is neither conventional nor wisdom, but is instead an historical myth. To the contrary, U.S. courts have a long and rich history of hearing wartime cases where the government alleged that a private party was an enemy, and the private party maintained that he was not. The common law enemy alien disability rule, to whatever extent it remains viable, simply has no application to cases where there is a colorable question as to whether the relevant individual is, in fact, an enemy.

To be sure, the courts have shown broad deference to the government in these cases, as a result of which the government has usually prevailed. But such outcomes have come only after thorough and searching analysis of the underlying jurisdictional fact - of whether the individual is, in fact, an enemy under the relevant definition.

enemy, enemy alien, habeas corpus, guantanamo, judicial review, access to courts

Abstract:
Disputes concerning the scope of the government's domestic crisis authority under the Commander-in-Chief Clause - particularly as of late - have tended to neglect the potential significance of other constitutional provisions in understanding the Constitution's separation of emergency powers. Perhaps no provision has been more disregarded than the so-called 'Calling Forth' Clause of Article I, which empowers Congress '[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions . . . .' In other writings, I have sought to emphasize the significance of the various statutes that Congress has enacted pursuant to its authority under the Calling Forth Clause, most of which are today codified at 10 U.S.C. §§ 331-335. In this symposium essay, my focus is more on the overlooked constitutional text itself, and what significance it may have for our modern understanding of the limitations placed upon the domestic use of the military by the Commander-in-Chief.

In particular, the essay explores two fundamental questions about the Calling Forth Clause: First, is the Clause limited on its face to only the 'militias'? If so, does the Clause therefore not even apply to today's National Guard, the members of whom participate in a 'dual enlistment' system whereby they are simultaneously members of their state guard and the 'National Guard of the United States,' and are acting in the latter capacity whenever 'federalized'? Second, if the Calling Forth Clause does not today limit the domestic use of the military, are there any other constitutional limitations on the domestic use of the military? What about statutory limitations, such as the Posse Comitatus Act of 1878? To what extent might such limitations unconstitutionally infringe upon the President's constitutional authority as Commander-in-Chief?

Ultimately, the essay concludes that, under current Supreme Court doctrine, the Clause does only limit the domestic use of the militias, as opposed to the military more generally, and that it is therefore a rather unimportant limitation on Congress's power to provide for the domestic use of the military. At the same time, however, the Clause reinforces the original understanding that Congress could limit the - President's - power to deploy military force domestically, a conclusion that could have significant implications vis-a-vis contemporary debates over inherent executive authority in the war on terrorism.

posse comitatus, calling forth clause, militia, presidential power, insurrection, insurrection act

Abstract:
This paper is a solicited review of Ben Wittes's book "Law and the Long War: The Future of Justice in the Age of Terror," which rightly suggests that there would be far less legal uncertainty today vis-a-vis the conduct of the war on terrorism had the Bush Administration sought - and had Congress provided - framework legislation governing issues ranging from the detention of "enemy combatants" to surveillance and even interrogation.

Nevertheless, the review takes issue with Wittes's critique of the role of the courts thus far, especially his contention that the Supreme Court's decisions to date may be seen as "positioning itself for a veritable sea change in the relationship between the federal branches in wartime." As I argue, Wittes's critique of the courts suffers from two flaws: First, as a descriptive matter, he unconvincingly dismisses (even while noting) a competing narrative of the role of the courts (and the Supreme Court in particular) in the war on terrorism - as a model of judicial restraint, characterized by denials of review in most terrorism-related cases, narrow holdings on the merits, and implicit guidance to the political branches on how to avoid more serious confrontations.

Second, and more deeply, Wittes suggests that such aggressive judicial review is dangerous, because it will lead to the courts having to pass upon programs that may be necessary, albeit illegal. In his words, "Judges are exactly the wrong people to ask permission to break the rules, either because they will refuse (as Taney did) in situations in which the president cannot honor the refusal or because they will acquiesce to steps that the judiciary ought not permit and certainly ought not cloak in the respectability of law." In this vein, Wittes's concerns powerfully mirror those articulated by Justice Jackson in his dissent in Korematsu - of the dangers that courts will conflate necessity with legality. While I share in those concerns, the review argues that Wittes (like Justice Jackson before him) is wrong to conclude that the optimal solution in those situations is for the courts to stay out of such disputes altogether.

Wittes, Korematsu, terrorism, judicial review

Abstract:
Should government employees ever have a right to disseminate classified national security information to the public? As a general matter, of course, the answer is "no." It is necessarily tautological that the central purpose of classifying information is to keep that information secret. But what if the information pertains to what we might describe as "unlawful secrets," and the individual in question has exhausted all possible non-public remedies - and to no avail? Are there any circumstances in which the law enables the government employee to come forward? Should there be?

As this Essay suggests, because of the broad language of the Espionage Act and the narrow language of certain whistleblower laws, a government employee would enjoy no statutory whistleblower protection whatsoever from either an adverse employment action or a criminal prosecution for disclosing classified national security information. And because of the Supreme Court's pronounced constriction of the First Amendment rights of public employees two years ago in Garcetti v. Ceballos, in which the Court effectively abandoned the idea of "Pickering balancing" for speech performed by a public employee as part of his professional duties, the employee would not be entitled to a constitutional defense, either.

Reasonable minds can certainly disagree about whether there should ever be circumstances where federal law entitles a government employee in possession of classified information about illegal governmental activity to publicly disclose that information, even as a last resort. The purpose of this Essay is not to offer an argument for or against such a right; rather, my goal is to suggest that federal law today includes absolutely zero protection for employees in such a position, and that, perhaps unintentionally, Garcetti is the reason why.

Garcetti, Espionage Act, whistleblowing, leaks, national security, Pickering

Abstract:
In An Originalism for Foreign Affairs?, Professor Ingrid Wuerth argues that originalism, under a number of different conceptualizations, is an awkward fit in the field of foreign affairs. In one sense, as Professor Wuerth suggests, originalism fails to answer many of the central questions of foreign affairs scholarship. In another sense, certain foreign affairs questions may, in her words, undermine the positive case for originalism. Either way, Professor Wuerth concludes, originalists should pay more attention to foreign affairs, and foreign affairs scholars should pay more attention to the competing methodologies of contemporary constitutional interpretation.

Rather than take up Professor Wuerth's thesis on its terms, in this short response, I want to focus on foreign affairs originalism and the courts, notwithstanding Professor Wuerth's quite accurate observation that a good deal of constitutional interpretation vis-a-vis foreign affairs takes place outside the courtroom. The question I want to ask (and hopefully answer) is whether, in those few instances where the courts do get involved in resolving the types of disputes here at issue, Professor Wuerth's careful analysis might actually make a difference. Put another way, is there a there, there? I suspect that one could easily take from Professor Wuerth's article the sentiment that originalism is, ultimately, of exceedingly little help to contemporary courts in resolving serious and difficult foreign affairs questions, especially in the context of conflicts between the legislative and executive branches.

But my thesis is that the real culprit behind this difficulty is neither originalism as an interpretive method nor foreign affairs as a body of constitutional law. Rather, the reason why the case for foreign affairs originalism may ultimately be so unconvincing is the movement toward functionalism as a means of resolving separation-of-powers conflicts, particularly in cases implicating foreign affairs. Thus, whatever may be said about the suitability or theoretical utility of originalism generally, or in the field of foreign affairs specifically, it is hard to square any case for foreign affairs originalism with the methodological framework at the heart of the Supreme Court's contemporary separation-of-powers jurisprudence.

Wuerth, Youngstown, originalism, foreign affairs, constitutional interpretation

Abstract:
This short introductory note to Munaf v. Geren, 128 S. Ct. 2207 (2008), was prepared for the American Society of International Law publication International Legal Materials, and includes a brief summary of the background of the case, the Supreme Court's holding, and its potential implications.

Munaf, habeas corpus, MNF-I

Abstract:
As part of a symposium on new affirmative visions of the judicial role, this essay takes on the Supreme Court's increasing unwillingness to resolve constitutional questions in post-conviction habeas cases under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), as seen in decisions such as Wright v. Van Patten, 128 S. Ct. 743 (2008). In most cases in which AEDPA applies, a petitioner is only eligible for relief if a state court's constitutional error was unreasonable based on prior Supreme Court decisions (and not dicta). As a result, the Court has repeatedly concluded that a state court did not act unreasonably without deciding whether it committed error, leaving the law unsettled -- perhaps indefinitely.

In a comparable line of cases under the qualified immunity doctrine, the Supreme Court had, for a time, endorsed a rigid order-of-battle pursuant to which reviewing courts must reach the rights question first. Although the rule of Saucier v. Katz was abandoned earlier this Term in Pearson v. Callahan, this essay suggests that the so-called Saucier sequence might make even more sense in the context of post-conviction habeas petitions under AEDPA, a context in which Saucier's many shortcomings hold far less water.

habeas corpus, AEDPA, saucier, immunity, federal courts

Abstract:
In Beyond Guantanamo: Obstacles and Options, Professor Greg McNeal balances a nuanced critique of the existing military commission structure with an understanding of the difficulties Article III courts would face in trying the same defendants for the same offenses. Moreover, Professor McNeal is rightly skeptical of the increasingly common calls for a hybrid national security court to handle the prosecution of a class of terrorism-related offenses and offenders, suggesting that there are significant obstacles in the way of any transition to such a model. In this Response, I do not disagree with Professor McNeal's cogent analysis. Instead, I suggest that his analysis gives short shrift to the sweeping personal and subject-matter jurisdiction conferred upon the commissions by the Military Commissions Act of 2006, and the potential repercussions of such dangerously overbroad authority.

As I explain in this brief Response, these shortcomings are perhaps the most serious defects in the proposals for a national security court, because any such institution would necessarily encounter analogous jurisdictional issues: namely who could be tried by such courts, and for what. Professor McNeal is unquestionably correct that major obstacles stand in the way of post-Boumediene reform, but any meaningful discussion of reforms must also focus on the broader - and perhaps more intractable - jurisdictional issues.

McNeal, Guantanamo, military commissions, MCA, habeas corpus, jurisdiction

Abstract:
Most critiques of the Supreme Court's June 2008 decision in Boumediene v. Bush (including Justice Scalia's dissent in the same) have at their core the argument that Justice Kennedy's majority opinion is inconsistent with prior precedent, specifically the Supreme Court's 1950 decision in Johnson v. Eisentrager. A closer read of Eisentrager, though, reveals a surprisingly unclear opinion by Justice Jackson, that seems to go out of its way to reach various issues on the merits even after suggesting that the federal courts lacked jurisdiction over habeas petitions filed by 22 Germans convicted of war crimes by a U.S. military tribunal in China. Put another way, it is hard to understand the scope of the rule that the Eisentrager majority thought it was enunciating, and therefore the extent to which it should have also applied in the Guantanamo cases.

This problem is not unique to Eisentrager, though. In the Court's June 2008 decision in Munaf v. Geren, it also brushed aside a post-World War II precedent -- the 1948 decision in Hirota v. MacArthur, again because it was not clear exactly which facts the earlier jurisdiction-precluding decision relied upon. As I explore in this essay -- part of the Tulsa Law Review's annual Supreme Court review -- these decisions are emblematic of a judicial methodology that is no longer in vogue, thanks to the Supreme Court's 1998 decision in Steel Co. v. Citizens for a Better Environment. After Steel Co., federal courts can no longer reach issues over which they lack jurisdiction, and so are far more careful to resolve jurisdictional questions at the outset, before moving on (where possible) to the merits.

But what effect does Steel Co. have on prior precedent, where the Court's decision leaves unclear how much the merits actually mattered? As I explore in this essay, Steel Co. may itself compel that contemporary courts narrowly construe jurisdiction-precluding rules in cases like Eisentrager and Hirota, on the assumption that those courts would not have analyzed questions the answers to which could not have mattered. Reasonable people may disagree about whether Boumediene and Munaf were rightly decided, but the critical point for present purposes is that both were decided on jurisprudential clean slates.

habeas corpus, jurisdiction, Boumediene, Munaf, Eisentrager, Hirota, Steel Co., precedent

Abstract:
This paper surveys the history of the executive detention power in American law, from the Founding through the detention of U.S. citizens as enemy combatants.

Focusing on precedents from the Civil War, World War II, and the so-called Emergency Detention Era, the paper concludes that courts have never deferred to the concept of an inherent executive detention authority, and that, especially after the 1971 enactment of 18 U.S.C. 4001(a), the power to authorize the extra-judicial detention of U.S. citizens is emphatically the province of Congress, and Congress alone.

The paper concludes with an analysis of the application of the detention power in the post-9/11 context, focusing on the detentions of Yaser Esam Hamdi and Jose Padilla. The paper concludes that neither of the statutes invoked by the government in Hamdi and Padilla, the Authorization for Use of Military Force in Afghanistan, or 10 U.S.C. 956(5), satisfies the requirements of 4001, and thus the detentions of both citizens raise serious constitutional questions.

War, terrorism, detention, separation of powers, emergency, Hamdi, Padilla