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
In “America and the World, 2020,” one of the essays in The Constitution in 2020, Harold Koh suggests that before 2001, the executive branch was “checked by an energetic Congress and overseen by a searching judicial branch,” and there were no such things as “law-free zones, practices, courts, or persons” (316). He follows these claims with a catalog of some of the George W. Bush administration’s post-9/11 claims about expansive executive authority over national security issues.
There is no question that the Bush administration had a strong conception of itself as a “national security sovereign.” But Koh’s phrasing suggests that this conception was a new thing in American law and politics – that before 2001, the president was constrained and hemmed in by the other branches and by a pervasive rule of law.
I want to contest that claim from the perspectives of the law of international extradition and the practice of irregular rendition as they existed before the “war on terror.” Extradition traditionally has been an area – like immigration – in which the executive branch enjoys enormous discretion over the movement of bodies across borders and in which federal courts tend to defer to executive action. Thus, Second Circuit Judge Jon O. Newman wrote in LoDuca v. United States (1996) that, if there were no federal extradition statute, “the Executive Branch would retain plenary authority to extradite.” Plenary authority, that is, to seize people and expel them from the United States without process so that they can face criminal proceedings in another country. Statements of this kind – and there are many in the federal reports – indicate that extradition provides a useful way to get at the nature of the national security sovereign today and to say a bit about the kind of national security sovereign we might have in 2020. Because extradition allows the movement of the bodies of alleged criminals across borders, it presents a moment both of extreme legal and personal vulnerability for the alleged “fugitive” and of heightened sovereignty for the governments involved. This vulnerability is compounded by the nature of the federal extradition hearing. The federal rules of evidence, civil procedure, and criminal procedure do not apply. The person facing extradition cannot introduce evidence that contradicts the government’s proof, and the government’s burden of proof is only probable cause. There is no direct appeal from the judge’s decision; instead the Secretary of State reviews the record of the hearing and decides on her own whether there is a basis to extradite. Because this process is so strange, many federal courts have declared that it is not an Article III proceeding at all and is instead an Article I event.
Habeas corpus review of the Secretary of State’s decision to extradite is available. But, the traditional scope of review reaches only the jurisdiction of the hearing judge, whether the offense is within the relevant extradition treaty, and whether there is any evidence to support the decision to extradite.
Traditional extradition doctrine also holds that none of the federal judges involved in the initial hearing or the habeas proceedings may consider the fairness of the proceedings in the requesting country or the conditions or treatment that the person being extradited will encounter there. These issues – even when the person makes a credible claim of torture or cruel, inhuman or degrading treatment or punishment – are for the Secretary of State alone. (I have quite a lot to say about this in “International Extradition, the Rule of Non-Inquiry, and the Problem of Sovereignty,” forthcoming in the October 2010 Boston University Law Review, with an earlier version available here.)
Based on this limited process, a person is seized, transported out of the United States, and handed over to a foreign justice system – and accordingly loses the ability to claim U.S. legal rights or to obtain U.S. judicial review of the consequences of the extradition. Note that my argument is not that there will be no rights or process in the receiving country. My point is that extradition is a high stakes proceeding for the people facing extradition, yet it is also an area in which federal courts pay relatively little attention to substantive individual rights and due process – at precisely the point when those rights are already about to be stripped away. Importantly, the reason that courts avert their eyes from extradition and its consequences is the perception that it is all a matter of foreign policy best left to the executive branch.
Early extraditions – most notably that of Jonathan Robbins in 1799 – generated concerns about executive power. But over time, that concern dissipated. Especially since the Supreme Court stopped hearing extradition cases in the 1930s, extradition has not only become routine, but lower federal courts routinely and increasingly have found ways to defer to the executive branch and to the claim that unreviewable foreign policy concerns (including concerns about the sovereignty of the requesting country) prohibit courts from asking too many questions about the movement of allegedly criminal bodies across borders. Put differently, against the rights claims of individuals, the claims of a national security sovereign – one that is entrusted with foreign policy, control over borders, and which interacts with other national sovereigns whose needs must also be respected – hold sway.
Of course, deference to foreign policy in the context of extradition is not the same thing as embracing the national security sovereign. But the law of extradition indicates that longstanding executive and judicial processes have been consistent with the premises of such a sovereign. It also provides an example of these premises at work in routine cases. (And, again, many aspects of immigration law have played the same role over the past century.)
Also important is that extradition exists alongside other, less “regular” processes. Under the Ker-Frisbie doctrine – and as approved more recently in United States v. Alvarez-Machain – federal courts will not inquire into the processes (or lack of processes) by which a criminal defendant ends up in federal court. Nor is it at all clear anymore whether abusive practices along the way provide a reason to dismiss an indictment. Because of this doctrine, irregular rendition, particularly since the 1970s, provides a way for U.S. officials to obtain criminal suspects without having to address the limits of extradition treaties and delays in the legal systems of other countries. These renditions usually have taken place with the cooperation of officials in other country, but U.S. officials have also resorted to kidnapping. (For a good discussion, see Ethan A. Nadelmann, The Evolution of United States Involvement in the International Rendition of Fugitive Criminals , 25 N.Y.U. J. Int’l L & Pol. 813 (1993).)
In the Clinton administration, officials took the next step and began to use “extraordinary rendition” to transfer people who were not in the U.S. and who would not end up in the U.S. Instead, they were moved from one country to another, with the goal of assisting criminal prosecution (and often with the goal of obtaining information along the way).
In the war on terror, the executive’s power to move bodies across borders has been a critical issue. Among other things, the Bush administration claimed the power to seize people and put them in custody at Guantánamo Bay, which was chosen precisely for its status as a potentially law-free zone (a status that had been tested but not rejected in the immigration context during the Clinton and George H.W. Bush administrations). Once there, many of the people detained were subjected to coercive interrogation (which sometimes amounted to torture) and degrading conditions of confinement. Thousands were (and still are) detained in Afghanistan and Iraq, and many of these people have also been subjected to harsh treatment.
The extent to which these detentions fall within the laws of war is an open issue, but it is certainly clear that the Bush administration pushed law of war arguments at least to their limits. Also clear is that not all of the detentions and movements of bodies were even remotely based in a law of war rationale (even if they fell within a rhetoric of war). And, of course, torture and ill treatment have little if any affirmative legal basis and can operate only through exceptions, exclusions, and gaps. Yet the Bush administration greatly expanded its predecessor’s extraordinary rendition program, this time with the explicit goal of obtaining information, with little concern for whether the methods used to obtain that information might rise to the level of torture. Further, the CIA held a number of prisoners at “black sites” in other countries, and those people also were subjected to coercive interrogations that sometimes included torture.
In short, the national security sovereign envisioned by the Bush administration includes broad power to seize and move people across borders, including into the United States, and to abuse those people if such treatment is deemed useful. Some of this claimed power is based in the widely accepted practices of extradition (which requires relatively little process for removing people from the United States and little if any concern for what happens to them overseas) and irregular rendition (which involves no process at all for bringing people into the United States for criminal trials). In both contexts, the executive branch has claimed near-unreviewable authority, and federal courts have largely disclaimed the power to review exercises of that authority.
Thus, Koh is correct that the Bush administration claimed more executive power than previous administrations, particularly with respect to physical control over people. But these claims are not unprecedented. At bottom, they rest on practices that are so well-established that they too often go unexamined.
As the Obama administration moves away from the excesses of the Bush administration, these established practices remain, and they remain unexamined. Legal and political actors simply assume that there are circumstances in which the executive has primary – perhaps even plenary – authority to move people across national borders and to decide which rights and procedures, if any, will apply to them. Further, as Saskia Sassen and others have observed, even as national sovereignty appears to be fragmenting in the twenty-first century, the role of national executives appears to be growing. And, of course, executive authority is paramount in times of war. On this point, remember that the Obama administration has largely embraced a war rhetoric and framework for addressing issues of terrorism and national security, and it has continued many of the Bush administration’s policies in these areas. Thus, the national security sovereign remains alive and well in all its essentials.
What, then, will the national security sovereign look like in 2020? Executive power probably will continue to expand, perhaps particularly in areas of domestic activity – the issue of surveillance for example. On the important question of bodies and borders, I doubt there will be much change in established practices, and they will remain available as precedents for more extreme actions. But, advocates of progressive constitutional change would do well to turn their attention to the national security sovereign. Indeed, progressive change would require rethinking the nature of a national security sovereign that in ordinary times has significant power over the movement of bodies across borders and that in times of emergency can expand that power immensely. This power is plainly in tension with generally assumed constitutional norms, but the application of those norms to extradition, rendition, and other movements is unclear because of issues such as citizenship, territoriality, and foreign policy.
The questions, then, are these: How much do we want to restrict the national security sovereign? How much does the existence of domestic or national rights depend on the executive’s discretionary power over borders and the people moving across them? How far do constitutional rights and constitutional limitations extend – are they only for some people in some places, or do they limit the government wherever, however, and against whomever it acts? What does it mean if domestic rights are based on a series of violent exclusions relating to borders, citizenship, and similar categories? These are large questions, and I will venture only a small answer here: if the doctrine and practice of extradition and irregular rendition remain the same, then they will continue to provide a precedent for, and ensure the normalization of, limited individual rights and expanded executive power over bodies and borders when crime or security is at issue.