an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Ok, the headline is a bit misleading. It's only two justices - Scalia and Thomas - who, in dissenting from a denial of certiorari by the Supreme Court this week, argued that the Court should settle once and for all whether detainees can invoke the Geneva Conventions in federal court. Lyle Denniston, as usual, reports the dissent-from-denial here, and he includes a link to Justice Thomas' 15-page opinion, which is itself well worth a read. Heck of an opinion.
In essence, Justice Thomas (joined by Justice Scalia) argues tha tthe Court should have granted review to an appeal by former Panamanian dictator Manuel Noriega, who claimed that Geneva barred the United STates from extraditing him to France to face drug crime charges in that country. Noriega had completed his sentence following criminal conviction under U.S. law, and ordinarily extradition under such circumstances would not be barred. But recall that Noriega had originally been captured by U.S. military forces operating in Panama in 1988. Responding to claims Noriega raised early in his criminal sentence about what treatment he would face in U.S. prison, a district court judge had ruled that the hostilities in which Noriega was seized constituted an "armed conflict" within the meaning of the Third Geneva Convention, that Noriega was a member of the armed forces of a party to the conflict, and that he was therefore entitled to POW protections regarding conditions of confinement. For various reasons, that decision was never especially contested. Fast forward 20+ years. Noriega's criminal sentence is now over, and he is arguing - in a collateral petition for habeas corpus - that Geneva gives him a right to repatriation to his home country now that the relevant armed conflict is over, and extradition to France would violate that right.
Having garnered only two (of the required four) votes to take the case, Justice Thomas lamented the Court's decision to deny cert. The Court should've granted review to "provide much-needed guidance" on issues "with which the political branches and federal courts have struggled since we decided Boumediene [recognizing the constitutional right of Guantanamo detainees to seek writs of habeas corpus in federal court]." As Justice Thomas notes: "It is incumbent upon us to provide what guidance we can on these issues now. Whatever conclusion we reach, our opinion will help the political branches and the courts discharge their responsibilities over detainee cases, and wll spare detainees and the Government years of unnecessary litigation." Why would this case have any relevance for the Gitmo detainees, none of whom to date has been designated a "prisoner of war"? Because, says Justice Thomas, one of the government's arguments before the 11th Circuit below was that Noriega's claim was barred by Section 5 of the Military Commissions Act of 2006 (a provision amending the habeas statute directly and therefore untouched by the new Military Commissions Act of 2009). Recall that Section 5 provided as follows: "No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories." Noriega had argued that Section 5 is, among other things, unconstitutional. But if the provision is constitutional, and if Noriega can no longer "invoke" Geneva on habeas, then his case (and, Justice Thomas appears to hope, those of many of the Gitmo detainees) would certainly be over.
I’ve written elsewhere about some of the many problems surrounding Section 5 (including its implications for the “judicial power”), so won’t much rehash them here. The dissent is remarkable for reasons well beyond its unsurprising attraction to Section 5. Probably most striking is that in its rush to urge the Court’s engagement in the case, the dissent opens by invoking Marbury v. Madison itself: “[I]n our tripartite system of government,” it is the duty of this Court to “say ‘what the law is.’” When was the last time the Court’s conservative wing seemed so keen to give guidance to the political branches on the matter of how to exercise its “war powers,” so to speak? Guess it’s all about the judicial power now.
Also impressive are the lengths to which the 15-page dissent-from-denial goes to establish that the Geneva Conventions in general are mentioned in any number of government decisions of late – so as to further demonstrate, I take it, that the political branches would benefit from the Court’s clarification here. After mentioning a handful of lower court decisions involving Gitmo detainees (while later, in a footnote, acknowledging that those cases don’t actually address the question of Section 5’s validity presented in this case), the opinion mentions the President’s Executive Order of last year mandating that Common Article 3 of the Conventions (prohibiting torture, cruel treatment and the like) provide the “minimum baseline” for the treatment of any detainee in U.S. custody. And the opinion notes that Congress is considering – but has not yet actually acted upon – other legislation that might also implicate the rights of detainees under the Geneva Conventions. I am not aware of any litigation “invoking” Geneva to challenge the President’s decision to recognize detainees’ entitlement to Common Article 3 protections. I am also not familiar with any Court decisions that aim preemptively to clarify an issue of law so that Congress might more easily legislate about it. (Examples to the contrary most welcome.) I do, however, recall someone’s old thought about how the Court wasn’t going to engage in the issuance of advisory opinions. Could be Justice Thomas thinks it’s time to revisit that question.
In more concrete terms, the dissenters see the value of taking the Noriega case now as centrally tied to the Court’s ability – through evaluating the validity of Section 5 – to shed light on “the contours of the substantive and procedural law of detention” affecting the Gitmo detainees that the Court left vague after Boumediene. True enough, Boumediene did not decide which if any of the Gitmo detainees could be lawfully held under the substantive law of armed conflict detention. Yet it is not at all clear that Section 5 has any bearing at all on the scope-of-detention cases now working their way through the courts below. As all of the lower courts to face the question have held, who the government may detain in the ongoing conflict turns on a reading of the statutory Authorization for the Use of Military Force passed in late 2001. It is true that the courts – and the Administration – have recognized that the Geneva regime, as well as other relevant international law, can properly inform the courts’ understanding of the meaning and scope of that statute. But this indirect reliance on the Geneva Conventions – as an aid to interpreting a federal statute – seems at least arguably different from the reliance Congress aimed to target in Section 5 – namely, detainees invoking Geneva as a “source of rights.”
In all events, the reasons that likely led the other 7 justices on the Court to decide against taking this case seem inescapably salient. Most important, deciding any number of weighty and complex Section 5 issues would make no difference in the outcome for Mr. Noriega. That is, even if Noriega is properly designated a POW and even if the treaty is enforceable in every respect in federal court, he’d still lose on the substance of his claim that he can’t be extradited post-conflict to face criminal trial. As the appeals court noted in rejecting Noriega’s Geneva claim, (and as the Obama Administration argued in asking the Court to deny cert), while Geneva Article 118 requires the prompt repatriation of POWs at the end of hostilities, Article 119 authorizes the detention of POWs against whom criminal proceedings are pending. Proceedings are effectively pending against Noriega in France. There’s just no winning claim here. Add to that the uniqueness of Noriega’s particular circumstance - his apparent status as sole U.S.-held detainee designated a POW; and the Solicitor General’s own, traditionally weighty, opposition to the Court’s taking the case – and one has a classic case for cert denial. I suspect it’s a good thing a majority of the Court agreed.