Book Review: William O. Douglas and The Anatomy of Liberty (1963)

While reading Supreme Court Justice William Douglas's The Anatomy of Liberty, I was struck by the little progress we've made since 1963. Almost sixty years later, American politicians, judges, and lawyers have made a liar out of Justice Douglas, who used his book to explain America's legal and political system to the rest of the world. 

I won't belabor you with exact quotes proven overly optimistic; it serves us better to understand differences between then and now. First and foremost, the spectre of nuclear extermination loomed larger for earlier generations. Students today read about WWII in history books, but Douglas lived Hiroshima and Nagasaki as real-time events. Like many of his peers, he realized nuclear proliferation meant every country in the world--including his own--was in danger. Regarding his generation's realization of foreseeable injury, Douglas wrote, "Whatever all the reasons may be, we walk the brink every hour of every day." (pp. 114)

Such fear--based on a reasonable assumption of ever-increasing risk--left politicians with no choice but to cooperate--at least so Douglas thought: "Now the sheer necessity to avoid the nuclear holocaust makes it necessary for us to build unity in common goals of an international character." (pp. 107) Douglas firmly believed technology's destructive potential would require greater cooperation, and he was not alone. One of Diego Rivera's most striking murals, "Man, Controller of the Universe," places the nuclear atom at the center with Vladimir Ilyich Ulyanov observing.

Mexico's Rivera believed scientific mastery of nature would lead to less drudgery for workers, creating a world without exploitation in which (socialist) governments would favor cooperation. Examples abound of intellectuals linking technology with greater collaboration out of necessity or natural progression; yet, as I sit in a Mexico City hotel in December 2020, it appears time has made fools of them all.

Douglas was a libertarian and Rivera a socialist, but despite contrasting political views, both men took it for granted that by 2020--if not earlier--cross-country cooperation would be optimized in favor of peace. By 1984, however, millions sang along to Alphaville's "Forever Young,"expressing a desire to stay childlike so as to avoid contemplating nuclear war. (In one performance, the lead singer salutes military-style during the lyrics, "Are you gonna drop the bomb or not?") If the Soviet-American conflict was caused by Western powers failing to include the also-WWII-victorious Russians within NATO, thus splitting the world in two spheres, by 1991, optimism emerged as the Soviet Union's economic fall produced a unipolar world. The very next year, Yoshihiro Francis Fukuyama, an American-born Harvard political scientist, authored The End of History and the Last Man (1992), declaring Western values the endpoint of human cultural evolution.

Time humbles us all, and in 2020, no reasonable person believes Western values or Western politics are universally appealing or even workable. The only inevitability accepted is the rise of The People's Republic of China, which has been quietly promoting a post-colonization, de-Westernized world after its 1950 invasion of Tibet to secure freshwater reserves. And so, despite Douglas's and Rivera's exhortations, we are experiencing déjà vu, where the threat of nuclear extermination continues but with different players using international institutions to gain advantages within increasingly splintered financial, technological, and content-distribution systems. In the past, only two hostile superpowers were in contention, which allowed us to focus on specific problems emanating from their friction. Today, the rise of regional powers asserting themselves will either destroy the idea of universal values and thus prospects for consensus, or make us yearn again for the greater simplicity of a bipolar world. 

And what of global cooperation? Sadly, except for the decade between 1991 and 2001, the picture looks bleak. Our current COVID19 pandemic is producing vastly different domestic outcomes and thus increased inequality and potential conflict. Furthermore, as most individuals worldwide suffer from economic uncertainty and greater dependence on governmental action, entities with the most secure digital infrastructure have gained influence while exposing globalization's indigestion of multiple technological standards. The old adage,"He who has the gold (and the military to protect it) makes the rules," has seemingly morphed into "That which provides your digital experience (and the best online security) is crucial to economic dominance and therefore unregulatable." As for diplomacy, I remember studying South China Sea maritime issues at Singapore's National University in 2001. Two decades later, the same issues exist, meaning exporting countries have been unable to resolve something as straightforward as shipping routes. I suppose I do not need to tell you that more countries possess nuclear weapons than ever before.

Perhaps global cooperation was doomed once governments used digital backdoors to spy on allies and competitors while private corporations tracked consumer behavior in order to maximize profits. Human beings may be willing to sacrifice some privacy for greater security, but a paradigm in which governments and corporations conceal technological vulnerabilities in order to peddle propaganda and gather data cannot succeed. As our earlier generation's worst fears are realized, their words might be heard asking for whom the bell tolls: 

[T]oday the young writer's characters must function not in individuality but in isolation, not to pursue in myriad company the anguishes and hopes of all human hearts in a world of a few simple, comprehensible truths and moral principles, but to exist alone inside a vacuum of facts which he did not choose and cannot cope with and cannot escape from like a fly inside an inverted tumbler. -- William Faulkner (1958)

A world lacking integrity or diplomacy necessarily reverts to "might makes right," which carries all the burrs and hooks one ought to expect. Listen to Douglas's prescient warning: 

So apart from the problems of nuclear war, disarmament is the world's number one concern... For it is only through disarmament that war can be prevented and adequate resources released for raising the world's standard of living. Prevention of war may be well-nigh impossible if the race to get bigger and better stockpiles of bombs continues... 

The vast gulfs that exist between various world cultures mean that the common ground will be narrow and selective... [and] only limited areas where a common ground can be found. Yet they are important, indeed critical, ones; and they will expand as the peoples of the world work with their newly emerging institutions and gain confidence in them... The problem of survival is to widen [currently limited] areas of consensus [aka the basis of law]. 

Pray tell, which institutions do the people of the world agree deserve our confidence? Can most people within a single country point to a single institution they wholly trust? Here I must quote Faulkner again: 

[There is a] belief that there is no place anymore where individual man can speak quietly to individual man of such simple things as honesty to oneself and responsibility toward others and protection for the weak and compassion and pity for all, because such individual things as honesty and pity and responsibility and compassion no longer exist, and man himself can hope to continue only by relinquishing and denying his individuality into a regimented group of his arbitrary, factional kind, arrayed against an opposite opposed arbitrary, factional, regimented group, both filling the same air at the same time with the same double-barreled abstractions of "peoples' democracy" and "minority rights" and "equal justice" and "social welfare"—all the synonyms which take all the shame out of irresponsibility by not merely inviting but even compelling everyone to participate in it.

That was 1958. Take a look at this sign in my hotel's restaurant: 

We don't need to know Spanish to know the intent of the sign-maker, nor the fact that it is easier to make a sign than to effectuate its lofty goals. I don't doubt this particular hotel sincerely believes in anti-discrimination, but it happens to be located in the most affluent district in the entire country, a country with vast income inequality, which is precisely why it is so confident signaling progressive values--and precisely why it shouldn't be. Rather than providing optimism based on greater understanding of each other, globalization's benefits have covered up cracks in the human dynamic, cracks most of us know are bound to swallow us whole unless seen and fixed. Are good intentions all we have to offer Donne, Faulkner, and Douglas? If so, then we have failed, and we don't deserve to survive and probably won't. 

© Matthew Mehdi Rafat (December 2020)

“The Constitution is paper. The bayonet is steel.” -- Haitian proverb 

Bonus: "When will we and the Russians (not to mention the Chinese) awaken to the realization that each can no longer go it alone, that, like it or not, we are in the same fragile boat and desperately interdependent?" -- William O. Douglas (1963), pp. 123-4

"Today all humanity is tied irrevocably together in an effort to escape the nuclear holocaust, to survive, to make technology the servant." -- William O. Douglas (1963), pp. 167 

Replace "Communists" with Russia to See America's Current Allegations in Historical Context

Justice Robert H. Jackson, concurring, Dennis vs. U.S., 341 U.S. 494 (1951): 

"The Communist recognizes that an established government in control of modern technology cannot be overthrown by force until it is about ready to fall of its own weight. Concerted uprising, therefore, is to await that contingency, and revolution is seen not as a sudden episode, but as the consummation of a long process. The United States, fortunately, has experienced Communism only in its preparatory stages, and, for its pattern of final action, must look abroad. Russia, of course, was the pilot Communist revolution which, to the Marxist, confirms the Party's assumptions and points its destiny... 

No decision by this Court can forestall revolution whenever the existing government fails to command the respect and loyalty of the people and sufficient distress and discontent is allowed to grow up among the masses. Many failures by fallen governments attest that no government can long prevent revolution by outlawry. Corruption, ineptitude, inflation, oppressive taxation, militarization, injustice, and loss of leadership capable of intellectual initiative in domestic or foreign affairs are allies on which the Communists count to bring opportunity knocking to their door. Sometimes I think they may be mistaken. But the Communists are not building just for today -- the rest of us might profit by their example." 

Bonus: 

"National unity, as an end which officials may foster by persuasion and example, is not in question. The problem is whether, under our Constitution, compulsion as here employed is a permissible means for its achievement. Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. Nationalism is a relatively recent phenomenon, but, at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity." -- West Virginia State Board v. Barnette (1943)

Justice Ginsburg

California Lawyer (November 2011) has an excellent interview with Justice Ruth Ginsburg.  Below is my favorite part: 

Q. I'd like you to talk a little bit about the cases that I've spent my life studying, the key gender cases that began in the 1970s, which you litigated and wrote amici briefs for. The 14th Amendment, which guarantees equal protection under the law, had been settled interpretation for, I think, 104 years. What made you think that you could get the courts to overrule more than a century of precedent?

A: The times. The Court is a reactive institution. It's never in the forefront of social change. When you think of Brown v. Board of Education, it was not only that Thurgood Marshall was a brilliant lawyer. It was the tenor of the times. We had just fought a war against an odious form of racism, and yet our troops through most of World War II were separated by race. Apartheid in America really had to go. Similarly, by 1970 the women's movement was revived, not just in the United States but all over the world. As a great legal scholar once said, the Court should never react to the weather of the day, but inevitably it will react to the climate of the era, and the climate was right for that change.

Perhaps, at least in a peaceful society, all good things come to those who wait?  I've sometimes wondered whether the Supreme Court's decision upholding Muhammad Ali's conscientious objector status would be the same if the case had arrived at the Court a few years earlier. In one article I read--it was from Men's Journal (Nov 2011)--the author wrote that the Supreme Court was set against Ali until a law clerk gave them a copy of Haley's Autobiography of Malcolm X. After reading the book, the Court allegedly had a change of heart. True or not, the anecdote demonstrates that the law, so long as it relies on interpretation by men and women, necessarily intersects with their bias.

In any case, regarding the efficacy of the Constitution against government tyranny--whether slavery, Jim Crow, Japanese internment camps, Abu Ghraib, etc.--I'll leave you with this Lysander Spooner quote: "But whether the Constitution really be one thing, or another, this much is certain--that it has either authorized such a government as we have had, or has been powerless to prevent it." [Updated on 3/25/12]

Bonus: see also "When Mass Murder and Theft of All Human Rights Were 'Legal': The Nazi Judiciary and Judges," by Hon. Richard D. Fybel, California Litigation, Vol. 25, No. 2, 2012, page 15-21.  He discusses Nazi Germany and the judicial branch's politically-convenient prostration before Hitler.

Update on 6/7/14: The Trials of Muhammad Ali (2013) includes an interview with a Supreme Court law clerk who worked on Ali's conscientious objector case. The Supreme Court almost dismissed the case but sent it back for review because a new wiretap issue arose (the government admitted to spying on conversations between MLK and Ali). Then, when the case returned to the Supreme Court after three and a half years, the preliminary vote was against Ali 5 to 3 until Thomas G. Krattenmaker, Justice Harlan's law clerk, argued--many times to Harlan--that the Nation of Islam should be treated the same as Jehovah's Witnesses who believed that only God may compel the followers to war and no one else. After reading the Autobiography of Malcolm X (1965) and Message to the Blackman in America (1965), he convinced Justice Harlan, who switched his vote, making it 4 to 4.  However, a deadlocked 4-4 vote would have put Ali in jail for 5 years and generated no substantive written opinion explaining the Court's rationale.  Then Justice Potter found precedent to rule in a narrow way that applied only to Ali based on denial of due process, which permitted the government to continue with its draft while allowing only Ali to file for C.O. status (rather than every single Nation of Islam member or prospective member). The revised opinion resulted in a unanimous 8 to 0 decision (Justice Thurgood Marshall recused himself because the NAACP Legal Fund was involved). The Court ruled Ali was denied due process because the government argued that he was insincere in his religious beliefs at the Draft Board yet later told the Supreme Court it believed Ali was sincere. And just like that, history was made. Without Krattenmaker, Harlan, and Potter, Ali goes to jail, never reclaims the title, and never raises the torch at the '96 Olympics.

Bonus: Interview with California Supreme Court Justice Stanley Mosk (1998):

LaBerge: [H]ow do you think both you and just the court in general can influence social policy, or vice versa, does social policy influence the decisions?

Mosk: Well, theoretically, we should be governed solely by the law and not by individual concepts of rights and duties.  But inevitably, individual rights do enter into opinions that may be written.  Whether that's good or bad, effective or ineffective, is always debatable. [pp. 84]

Mosk: I have a certain sympathy for individuals in our society.  Our society has grown so large and impersonal that I think we sometimes have the tendency to overlook an individual's rights and obligations. [pp. 85]  

The Most Significant U.S. Supreme Court Decision this Century

After seven long years, America’s credibility has been restored by a much too close 5-4 U.S. Supreme Court decision. The Boumediene v. Bush (2008) decision can be found at this link:

Supreme Court Decision (PDF file)

The transcript of oral argument can be found here:

Supreme Court Oral Argument

Seth Waxman argued on behalf of the detainees--his profile is here. (There are some people who are great advocates, but Mr. Waxman is in a class by himself. While he is well-known in legal circles, it’s quite possible that American history students years from now will not know Seth Waxman’s name. That would be a mistake. Mr. Waxman should be in every new history book published as one of the greatest Americans who ever lived.)

Most surprising is Justice Antonin Scalia’s switch-a-roo in Boumediene. As a so-called true conservative, he should have understood the overarching theme of the Constitution--that the Constitution limits the government’s actions and exists to hold government accountable to the public. As such, secretive criminal tribunals and detentions, like the one in Guantanamo Bay, directly contravene constitutional principles such as the separation of powers doctrine.

In fact, Justice Scalia had dealt with a somewhat similar issue in Hamdi v. Rumsfeld, where his dissent was joined by the most liberal Justice on the bench, John Paul Stevens. Scalia even referred to his Hamdi opinion during the Bush oral argument. In an interesting slip, when Scalia demanded to know whether there was any precedent for extending constitutional habeas corpus to non-citizens, and the detainees’ counsel offered examples, Scalia said, “Okay, try them. I mean, line them up.” Somewhere in Scalia’s brain, he must have subconsciously understood that forcing a government to provide a speedy trial to all persons it detains on U.S. soil and/or under complete U.S. jurisdiction and control is an essential check on corruption and power.

In Hamdi, Justice Scalia advocated the most restrictive interpretation of the Executive’s power of detention. The other Justices said that so long as the government allowed some kind of process accompanying detention that provided for meaningful notice of the factual grounds for detention, and a meaningful opportunity to present evidence before a neutral tribunal with the assistance of counsel, the Court would defer to the Executive branch. Scalia, however, rejected this half-way measure (I call it “habeas corpus lite”) and said that the government had only two options when it detained Hamdi: a) either Congress had to suspend the right to habeas corpus, an option only in times of “invasion” or “rebellion,” or b) the government had to provide a normal, open criminal trial to Hamdi, a U.S. citizen. Scalia argued that the Court had no legal basis for telling the Executive or the Legislative branches how to establish new procedures in Hamdi’s situation; instead, the Court’s ambit was limited to declaring the government’s procedure unconstitutional and ordering Hamdi’s release, or declaring the government’s procedure constitutional. What is so stunning about Scalia's dissent is that it fails to realize that Kennedy is saying exactly what Scalia himself wrote in Hamdi, meaning that the logic is the same, and the difference is that one case dealt with a U.S. citizen while the other did not.

Usually, Scalia's unyielding type of interpretation--i.e., either the document says what it says, or it doesn’t, and it’s not my business to make up things I think it should say--gets Scalia points for his self-restraint. Indeed, this was Scalia’s time to shine, to show the public that his brand of interpretation may not be the most compassionate, but the one that could be counted on in hard times, when its unbending steel backbone would not melt under public pressure. In short, Scalia choked, and Justice Kennedy has an opinion that will shape his legacy in the years to come.

I met Justice Kennedy several years ago when I was a law school student. He is a tall, affable man with a distinguished but not standoffish demeanor. After his speech, he kindly signed my Constitutional Law textbook on the front inside cover. Before he signed the cover, he flipped through the book, trying to find one of his opinions. He saw none of his opinions had been published prominently and thus could not sign next to an opinion he had written. I am not sure whether he was looking for a particular case, but it was then that I realized Justice Kennedy was concerned about establishing a legacy and disappointed that his contributions to the Court were not as famous as some of his colleagues. For a moderate conservative, it was somewhat incongruent to hear him tell the audience that his favorite Justice was Justice Thurgood Marshall. But combine Kennedy's statement with his search for one of his opinions in my textbook, and you see that this is a man that wants a legacy. He now has it, and it’s a damn fine one. If you ever see him and want his autograph, flip to your Con Law book and present him with Boumediene v. Bush.

The Court’s oral argument and opinion are a joy to read, in stark contrast to the tragic underlying facts. The United States has detained persons in Guantanamo Bay for six years without a trial, much less a speedy one. The United States argued that no Constitutional violation existed because it was good enough that Congress had established other processes for habeas corpus under the Detainee Treatment Act (DTA), awarded jurisdiction for habeas corpus review only to the D.C. Circuit, and, through the Military Commissions Act (MCA), had created another tribunal for persons believed to be enemy combatants. The Supreme Court’s summary of its decision shows the Court quickly rejected the government’s other argument that American courts have no jurisdiction over detainee treatment because detainees are held in Cuban territory:

"Although the United States has maintained complete and uninterrupted control of Guantanamo for over 100 years, the Government’s view is that the Constitution has no effect there, at least as to noncitizens, because the United States disclaimed formal sovereignty in its 1903 lease with Cuba. The Nation’s basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say 'what the law is.' Marbury v. Madison, 1 Cranch 137, 177."

We are then left with the government’s remaining argument, which doesn't sound too convincing: the Court should not intervene because the detainees in Guantanamo have “habeas corpus lite”--where the government can accuse someone of affiliating with a known Al-Qaeda operative and detain him on that basis but refuse to disclose the name of the operative so that a proper defense can be made. The gist of the detainees’ argument (and frustration) is beautifully encapsulated by Justice Breyer in this brief, eye-opening exchange:

JUSTICE BREYER: On that question, suppose that you are from Bosnia, and you are held for six years in Guantanamo, and the charge is that you helped Al-Qaeda, and you had your hearing before the CSRT [Combatant Status Review Tribunal].

And now you go to the D.C. Circuit, and here is what you say: The CSRT is all wrong. Their procedures are terrible. But just for purposes of argument, I concede those procedures are wonderful, and I also conclude it reached a perfectly good result.

Okay? So you concede it for argument's sake. But what you want to say is: Judge, I don't care how good those procedures are. I'm from Bosnia. I've been here six years. The Constitution of the United States does not give anyone the right to hold me six years in Guantanamo without either charging me or releasing me, in the absence of some special procedure in Congress for preventive detention.

That's the argument I want to make. I don't see anything in this CSRT provision that permits me to make that argument. So I'm asking you: Where can you make that argument?

GENERAL CLEMENT: I'm not sure that he could make that argument.

JUSTICE BREYER: Exactly.

While this proposition--that if the government detains someone in a place where it has total jurisdiction and control, then the person detained is entitled to a lawyer with access to the facts against his client and a speedy trial--may sound simple, Scalia is correct that it may open a can of worms. Scalia talks about the history of this country to demonstrate the complexity of the issues. First, the American government detained 400,000 Germans during WWII–did all of them have to get a speedy trial or be released? Second, what about POWs that Americans capture abroad, like in Vietnam? Do all of them get a speedy trial? (McCain may want one, and the American and Vietnamese governments may agree between themselves to provide trials, but doesn’t that mean that the Court is interfering in international affairs?) As you can see, the issues are complicated when extending the rights of habeas corpus to non-citizens, and Scalia believes that there is no decision ever made that has granted such rights to non-citizens. In typical Scalia fashion, he ends his written opinion with a bang, not a whimper: “The Nation will live to regret what the Court has done today. I dissent.”

Since I’ve given you Scalia’s ending, let’s go to Kennedy’s:

Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers...Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury...[But] [t]he laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law. pps. 68-70.

So Kennedy is telling Scalia to calm down--we can work through this, and if times change, the law and Americans can adapt.

In any case, Kennedy's opinion gets right to the point. Kennedy disagrees that the Constitution allows him to approve the government's request for "habeas-corpus lite":

We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court.

Kennedy, on page 9, stresses the importance of the writ of habeas corpus: "The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom." Kennedy takes us through a history of the writ, and why it was so important. He talks about the Magna Carta, and how we moved away from a monarchy-centered legal system to our current one:

As the writers said of Magna Carta, “it means this, that the king is and shall be below the law.” 1 F. Pollock & F. Maitland, History of English Law 173 (2d ed. 1909); see also 2 Bracton On the Laws and Customs of England 33 (S. Thorne transl. 1968) (“The king must not be under man but under God and under the law, because law makes the king”).

But Kennedy is building up to his key point--that separation of powers must be preserved, lest the Court invite tyranny:

This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power. The Framers’ inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty. See Loving v. United States, 517 U. S. 748, 756 (1996) (noting that “[e]ven before the birth of this country, separation of powers was known to be a defense against tyranny”); cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring) (“[T]he Constitution diffuses power the better to secure liberty”); Clinton v. City of New York, 524 U. S. 417, 450 (1998) (KENNEDY, J., concurring)

Go back and read that paragraph again--if you truly understand it, you understand America and you understand its founding principles. It was about time that someone in another branch of government stood up to George W. Bush and his expansion of the Executive power. Reading the words above, knowing that they are now enshrined as the supreme law of this land, was almost worth the wait.

Kennedy then goes even further, pointing out that the doctrine of separation of powers isn't just to protect citizens, but to protect non-citizens ("persons"). While he doesn't say it clearly, the point is that the Constitution is designed as a check against government action, and because that is the first step in any analysis of constitutionality, the law does not necessarily turn on the accident of someone's place of birth (page 12):

Because the Constitution’s separation-of-powers structure, like the substantive guarantees of the Fifth and Fourteenth Amendments, see Yick Wo v. Hopkins, 118 U. S. 356, 374 (1886), protects persons as well as citizens, foreign nationals who have the privilege of litigating in our courts can seek to enforce separation- of-powers principles, see, e.g., INS v. Chadha, 462 U. S. 919, 958–959 (1983).

(I expect the paragraph above will produce more litigation than the Court intended, especially with respect to immigration law issues.)

Kennedy also indicates the Founders believed the writ of habeas corpus was designed to prevent "tyranny" and "arbitrary government." He cites Federalist No. 84.

The next part of the opinion deals with historical precedent. Kennedy is in a bind, because he knows Scalia has him over a barrel. Kennedy has no case law on point that supports an expansion of the writ of habeas corpus to non-citizens, so he goes through some legal history relating to British-India relations, Scottish law, and even British-Canadian relations. It's not terribly exciting, because Kennedy is really trying to satiate Scalia and insulate himself and the majority from a scathing dissent. The way Kennedy deals with the issue is by saying that neither side has any precedent on point, because all the facts in similar cases are completely distinguishable one way or another. The parties themselves apparently made that argument: "Each side in the present matter argues that the very lack of a precedent on point supports its position." (page 21)

And here's where Kennedy drives the knife home against Scalia, logically--he says that the historical record is incomplete (plus, America has only been around 200+ years), and we've never seen a problem like this one in our ever-changing society, so the principles of the Constitution trump the lack of historical record:

Both arguments are premised, however, upon the assumption that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before us. There are reasons to doubt both assumptions. Recent scholarship points to the inherent shortcomings in the historical record. See Halliday & White 14–15 (noting that most reports of 18th century habeas proceedings were not printed). And given the unique status of Guantanamo Bay and the particular dangers of terrorism in the modern age, the common-law courts simply may not have confronted cases with close parallels to this one. We decline, therefore, to infer too much, one way or the other, from the lack of historical evidence on point. (page 22)
Kennedy returns to this theme that this is a unique situation, limiting the value of prior decisions:

It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel... (page 41) The gravity of the separation-of-powers issues raised by these cases and the fact that these detainees have been denied meaningful access to a judicial forum for a period of years render these cases exceptional. (page 43)

Having dealt with Scalia, Kennedy can move on to the government's next argument, i.e. "that Guantanamo is not within its sovereign control." He disposes of that argument by assessing what "sovereignty" means, and smartly quotes Black’s Law Dictionary 1568 (4th ed. 1951) (defining “sovereignty” as “[t]he supreme, absolute, and uncontrollable power by which any independent state is governed.” (page 33) It's quite clear that the U.S. does indeed have sovereignty over Guantanamo Bay under any basic or reasonable definition of sovereignty. Kennedy also states that no other country has made a claim on Guantanamo, and along with the treaty and lease, it's clear that the U.S. does have de facto sovereignty:

The United States has maintained complete and uninterrupted control of the bay for over 100 years. At the close of the Spanish-American War, Spain ceded control over the entire island of Cuba to the United States and specifically “relinquishe[d] all claim[s] of sovereignty . . . and title.”

The "We don't have de jure sovereignty over Cuba, so you're interfering in international affairs" argument is the government's weakest one, but had to made because its technical aspect appeals to lawyers. Still, the idea that the government's lawyers tried to rely on this weak argument probably upset the Court, leading to the following rebuke from Kennedy, where he says, "Our basic charter cannot be contracted away like this [through loopholes]."

Kennedy is most effective when he acts as a statesman, using his soothing style to remind everyone of the plain facts:

The Court [in another situation] was right to be concerned about judicial interference with the military’s efforts to contain “enemy elements, guerilla fighters, and ‘were-wolves.’ ” 339 U. S., at 784. Similar threats are not apparent here; nor does the Government argue that they are. The United States Naval Station at Guantanamo Bay consists of 45 square miles of land and water. The base has been used, at various points, to house migrants and refugees temporarily. At present, however, other than the detainees themselves, the only long-term residents are American military personnel, their families, and a small number of workers. (page 40)

In that one simple paragraph, Kennedy has responded to any who would dare say that he has made it difficult for the military to combat terrorism. Kennedy clearly thinks that this is a simple issue. And after you hear him explain it, it does sound simple: there are people being held someplace under the U.S.'s control; these people are not in the middle of a war zone; Cuba won't mind if we give these people a trial ("There is no indication, furthermore, that adjudicating a habeas corpus petition would cause friction with the host government." page 41); there is no threat to anyone if these people get a trial; habeas corpus is an essential Constitutional right; and by denying these persons a speedy trial, the executive branch is violating the Constitution.

Kennedy reminds everyone that his ruling is limited and does not apply to combat zones or where other countries can claim competing sovereignty over a particular parcel of land where persons are held:

While obligated to abide by the terms of the lease, the United States is, for all practical purposes, answerable to no other sovereign for its acts on the base. Were that not the case, or if the detention facility were located in an active theater of war, arguments that issuing the writ would be “impracticable or anomalous” would have more weight.

Now here is where there is some concern that Kennedy has crafted a hollow opinion. Can't the U.S. just bypass the ruling by moving anyone it deems an "enemy combatant" or a non-citizen to Egypt or some other country where human rights violations aren't viewed with the same kind of scrutiny as they are in the U.S.? It seems that if the U.S. does that, they are in the clear and can revert to "habeas corpus lite." The supreme law of the land can therefore be trumped by using a loophole of an alliance with a country that has lower standards. It would allow picking up an Israeli illegal immigrant in San Diego, sending him to Saudi Arabia, and locking him up forever without a trial. I suppose logistical and financial realities would prevent such a scenario from happening, but the existence of such a wide loophole concerns me. Still, there must be limits to how much a court can order an executive branch to enforce laws, and Kennedy has drawn the line where he feels is appropriate. He comes back to this troubling issue later on page 65, saying,

In cases involving foreign citizens detained abroad by the Executive, it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody. If and when habeas corpus jurisdiction applies, as it does in these cases, then proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time. Domestic exigencies, furthermore, might also impose such onerous burdens on the Government that here, too, the Judicial Branch would be required to devise sensible rules for staying habeas corpus proceedings until the Government can comply with its requirements in a responsible way.

I interpret the above paragraph to indicate that the Constitution requires some form of trial within a reasonable time, but my reading may be reasonably disputed. Kennedy also allows another loophole--he reminds everyone that Congress, under the Suspension Clause, can suspend the writ of habeas corpus if it wants to do what it's doing now. Of course, the writ has been suspended only once in American history, during the Civil War (a "rebellion" or "invasion" is required).

Kennedy turns to the standards that lower courts and tribunals must have when dealing with writs of habeas corpus, and ends with a broad statement that basically says, "It depends":

We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to “the erroneous application or interpretation” of relevant law. St. Cyr, 533 U. S., at 302. And the habeas court must have the power to order the conditional release of an individual unlawfully detained—though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted...depending on the circumstances, more may be required. (page 50)

The opinion eliminates the legality of CSRTs (Combatant Status Review Tribunals) and DTA courts. See pages 57-58 of the opinion--Kennedy says that minimally respectable tribunals in history "had an adversarial structure that is lacking here [in the military court systems]. He is essentially calling the CSRTs and DTA courts "kangaroo courts." See page 66: "the DTA review procedures are an inadequate substitute for habeas corpus." But in typical Kennedy fashion, where Kennedy has faith that the system will work things out once the Court provides a broad outline, he avoids delving too far into exactly what is required in a tribunal accepting writs of habeas corpus. He says,

The extent of the showing required of the Government in these cases is a matter to be determined. We need not explore it further at this stage. We do hold that when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release... (page 58) It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined. (page 69)

So what's the real result of Justice Kennedy's decision? "To be continued..." by the other two branches and the will of the people. Kennedy's deference to the other two branches--within the reasonable framework set forth in his opinion--makes the dissenters' arguments sound hollow.

Justice Roberts wrote a dissent, joined by Scalia, Thomas, and Alito. The gist of it is in the very first paragraph, which tells you all you need to know about what Roberts thinks of the decision:

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date.

Roberts continues in his typical confrontational and adversarial style on page 8, saying,

Simply put, the Court’s opinion fails on its own terms. The majority strikes down the statute because it is not an “adequate substitute” for habeas review, ante, at 42, but fails to show what rights the detainees have that cannot be vindicated by the DTA system.

Justice Souter (with Ginsburg and Breyer) most likely wrote their short concurrence to respond to Justice Roberts, stating,

A second fact insufficiently appreciated by the dissents is the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years...[I]t is enough to repeat that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation.

After Kennedy's grand words, what it boils down to is the following: some Justices thought that Congress had acted with the appropriate urgency and crafted new legal systems in good faith to deal with captured combatants. Other Justices believed that the profound delay in trying the people held in Guantanamo Bay with appropriate safeguards proved that Congress was disrespecting a fundamental Constitutional right.

Justice Roberts ends his dissent with this seemingly crushing rebuke:

So who has won?...Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.

Justice Roberts' words sound like music to a libertarian's ears because they invoke the principle of self-restraint. But once you remember that the people in Guantanamo Bay had waited six years, and the D.C. Circuit court judges had basically denied them due process for those six years while also accepting a non-adversarial, closed trial system as sufficient, Justice Roberts sounds unconscionably naive.

There is a time and place for the Supreme Court to intervene in politically charged issues. When the Executive and Legislative branches are violating the Constitution by enacting into law and then enforcing kangaroo courts and Kafkaesque tribunals, the Court's intervention was justified.

Justice Scalia's dissent is less interesting than usual. He keeps harping on the lack of historical basis to grant habeas corpus to non-citizens, which was adequately addressed by Justice Kennedy. But Scalia loses credibility when he begins his dissent with the idea we are currently in such a state of terror that we cannot provide a speedy trial to persons locked up for six years who are under complete American control:

America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen...The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

I usually love Scalia's opinions, but have serious problems with this one. He is basically accusing the Court of killing Americans. He goes on to say that the Court is making a mistake because the Executive branch relied on a legal memo saying that if detainees were transferred to Guantanamo Bay, they would have no rights to habeas corpus:

Had the law been otherwise, the military surely would not have transported prisoners there [Guantanamo Bay], but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention.

Scalia is saying that not only is the Court trumping the opinions of the President's legal staff, the President would never be in this position if he had kept the detainees in squalid conditions elsewhere. Scalia sounds like he's more concerned with John Yoo's malpractice insurance than the Constitution. He goes on to say,

What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

This echoes Roberts' comments that the Court's decision seems politically motivated, i.e. intended to increase the power of the judiciary rather than complying with common sense. However, as I said before, there is a time and place for court intervention, and six years of detention based on secret evidence seems like a reasonable time to intervene. No dissenter mentions this simple fact: that had the Executive and Legislative branches worked together to provide an adequately adversarial legal system within a reasonable time to the detainees, all issues before the Supreme Court would have been moot. The inaction of the other branches, not some plot to increase judicial power, is what allowed Justice Kennedy to finally have his legacy.

In addition, the text of the Constitution refers to due process being given to the "accused" and to "persons," indicating that no citizenship requirement exists for due process. For example, the Bill of Rights prohibits Congress from making any law respecting establishment of religion and prohibits the federal government from depriving any person of life, liberty, or property, without due process of law. The Constitution does not use the word "citizen" very often. Even the 6th Amendment uses the term, "accused," rather than "citizen":

Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

The case before the court dealt with Article I, Section 9 of the Constitution, not the Bill of Rights. The specific clause is as follows: "Clause 2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

It's interesting that Scalia, of all people, would be reading something (i.e., a citizenship requirement for due process) into the Constitution that isn't supported by the four corners of the document. Also, as all lawyers know, "shall means shall." Article I is very straightforward--it states that habeas corpus "shall" not be suspended except in two scenarios. What makes the Supreme Court's ruling confusing is that no Justice really defines whether 9/11 constitutes an invasion or rebellion, and if so, who has the authority to determine whether an "invasion" has occurred. The Supreme Court bypassed the issue of providing guidance on what constitutes a "rebellion" and "invasion," because Congress is the entity with the power to suspend the writ of habeas corpus, and because it had not done so, that specific issue was not before the Court.

Senator Barack Obama praised the ruling as "an important step toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between terrorism and respecting habeas corpus." I'm with Obama--and apparently, the four corners of the Constitution--on this one.

copyright Matthew Mehdi Rafat (2008)

Update on June 16, 2008:

One of my former law professors was kind enough to offer some brief thoughts on my post--I don't have his/her permission to include his/her name, but his/her words clarify my post substantially:

1. I don't think the Court has ever held that the full panoply of the Bill of Rights applies to noncitizens held outside the United States, particularly in the context of hostilities towards the U.S. Indeed, Hamdi seemed to hold otherwise. So that might explain the 6th Amendment issue.

2. Remember that Congress has NOT suspended the writ. So the question of whether we have had an "invasion" to threaten "public safety" is not yet relevant, at least legally. The issues were (1) whether the detainees could invoke the protection of the Suspension Clause, and (2) whether the MCA and DTA procedures were an adequate substitute for habeas. And the answers were (1) yes and (2) no, respectively.

3. I think Scalia has been consistent on this point. I think he has consistently stated that the writ does not extend to noncitizens held outside the United States. Notice, also, that the Suspension Clause says nothing about "persons" or "citizens." So, for Scalia, it is a question of what the common law required in 1789.

Update on January 8, 2009: here's an excellent documentary ("Torturing Democracy") on the Guantanamo detainees

http://www.gwu.edu/~nsarchiv/torturingdemocracy/program/

Seattle Desegregation?

The U.S. Supreme Court handed down the decision in Parents Involved in Community Schools v. Seattle School District No. 1 yesterday. In what will be quoted forevermore, Chief Justice Roberts wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Justice Breyer called the opinion simplistic. Justice Stevens, as the most tenured judge on the Court, stated that the Court is radically changing precedent because the Supreme Court justices in the past would have disagreed with the Seattle decision ("It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.").

When reading the majority opinion, I was struck by how much enmity Justice Roberts has created between the justices despite his pledge to unite the Court and create more civility. After writing for the majority, Roberts then blazed through Justice Breyer's dissent and dissected it like a law clerk attacking another lawyer's brief--or, to be more colorful, Sherman going through Atlanta. In contrast, Justice Kennedy, as the fifth vote necessary to have a majority, appeared to distance himself from Roberts in various sections in a separate concurrence. Justice Thomas also seemed to go out of his way to be respectful to Justice Breyer, saying that while he has no doubt Breyer's intentions are good, the law must remain as immutable as possible rather than being contingent on a particular judge applying the law.

In short, Roberts stated that there had to be a compelling reason to use race. For law students, this is Con Law 101, i.e. the strict scrutiny test. Kennedy appeared to try to compromise by saying that diversity was a compelling goal, and other methods could be used to create diversity, such as locating new schools in neighborhoods that would naturally draw upon different races (although one wonders how this would be accomplished if some neighborhoods are already segregated--I predict a future opinion echoing O'Connor's disdain for gerrymandering, where she famously called some of the Congressional districts similar to a Rorschach test or a "bug splattered on a windshield.") Breyer essentially stated that the Court is betraying precedent and twisting the intent and spirit of Brown v. Board of Education.

The opinion is most intelligent when differentiating between de jure segregation and de facto segregation. The conservatives seem to say that de facto segregation is permissible. The paragraph that seems to lay the best rationale for the decision is directly below:

"The Court’s emphasis on‘benign racial classifications’ suggests confidence in its ability to distinguish good from harmful governmental uses of racial criteria. History should teach greater humility. . . . ‘[B]enign’ carries with it no independent meaning, but reflects only acceptance of the current generation’s conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable.” Metro Broadcasting, 497 U. S., at 609–610 (O’Connor, J., dissenting). See also Adarand, supra, at 226 (“‘[I]t may not always be clear that a so-called preference is in fact benign’” (quoting Bakke, supra, at 298 (opinion of Powell, J.))). Accepting JUSTICE BREYER’s approach would “do no more than move us from ‘separate but equal’ to ‘unequal but benign.’” Metro Broadcasting, supra, at 638 (KENNEDY, J., dissenting)."

One interesting point made in the dissent is that the school plans in question here are voluntarily attempting to desegregate. Breyer indicates that voluntary plans to achieve desegregation should be viewed with a different lens than laws involuntarily ordering segregation, as was the issue in Brown v. Board.

(Ironically, this same month, the U.S. Mint produced one of the most beautiful coins ever made. It is a silver coin depicting the Little Rock Central High School Desegregation. See here.)

My take on the situation is that the conservative justices have no patience for dividing Americans by race. In their minds, they are attempting to prevent America from becoming Yugoslavia 100 years from now. One of Justice Alito's quotes from a different case could summarize the majority's feelings: "It is a sordid business, this divvying us up by race.” The majority opinion forcefully points out that under the Seattle program, if a school was 30% Asian, 30% Hispanic, 10% African-American, and 30% Caucasian, this breakdown would not be sufficiently diverse. Justice Roberts' example implies that this is a different world than 1975.

The liberal justices, on the other hand, believe that in much of America, we are still segregated by race. A cursory glance at any BLS or Census statistics will show lower rates of net worth and home ownership in the African-American community than in any other community. Although not stated in the opinion, the liberal justices seem to imply that the only reason for such modern disparity is the legacy of slavery and unequal access to education. It is not mentioned in the opinion that most of the conservative justices worked or are from large cities that are more integrated than smaller cities in the South. In much of America, it is indeed true that not much has changed since 1975. On the other hand, Justice Thomas's opinion seems to carry more weight because he actually integrated schools, sometimes against the wishes of classmates and parents of other students. An unsung hero, Rev. John Brooks, was instrumental in Thomas's education, and an interview given to BusinessWeek provides the most insight I have seen about Thomas and his background. See here (3/12/07, interview & Rev. John E. Brooks).

While it may seem counterintuitive that Justice Thomas would side with Justice Roberts here, Thomas may believe that his personal experience actually supports the majority's arguments because there was no de jure segregation at the time, and as a result he was able to attend majority-white schools and receive a top-notch education. Thus, Thomas may view Seattle through the prism that he is not dealing with any law forcing segregation, and any rule classifying anyone based on race could very easily turn against him or another race in the future. Jim Crow, after all, was not that long ago.

Perhaps an economic analysis would be helpful in understanding the majority opinion. Schools receive much of their funding from local property taxes. Housing values closely correlate with local school quality, as parents are willing to spend more money to buy into a better school district. See The New Economics of the Middle Class: Why Making Ends Meet Has Gotten Harder, by Elizabeth Warren and Leo Gottlieb:

Failing public schools have an impact on the children trapped in them, but they also impose a terrible burden on the families struggling to escape them. Failing public schools translate directly into higher housing costs for middle class families as they try to escape those schools. Home prices have grown across the board (particularly in larger urban areas), but the brunt of the price increases has fallen on families with children. The home value for the average childless couple increased by 58 percent between 1984 and 2004—an impressive rise in less just twenty years. (Again, these and all other figures are adjusted for inflation.) For married couples with children, however, housing prices shot up 145 percent during this period—nearly three times faster.

The Seattle parents were paying lots of money in mortgage payments and local taxes and were being told that some of their kids would have to go to an inferior quality school as part of a greater good. The students benefiting from the Seattle program would be students who, but for the program, would have to go to poorly funded schools. The students from poorer school districts would probably come from families that did not pay as much money in taxes or who lived in apartments (thereby not paying property taxes). Thus, the Seattle program indirectly charged parents who paid more in taxes more money for an inferior product while gifting parents who paid fewer taxes with a better product. In California, we had a lawsuit that argued that property taxes should go to the state rather than the county and then distributed among school districts in amounts to prevent inequality. I am unclear how Washington or Kentucky, the other state affected by the opinion, distributes its property taxes. The opinion did not discuss anything about vouchers, either. It remains to be seen what impact the opinion will have on voucher advocacy movements.

For now, in a time in America when we have ample resources and the economic "pie" is large, the Seattle decision will not create massive problems in the near term. The question is how we will view the decision if a sustained recession occurs, bringing to light the economic inequality in America that oftentimes can be categorized by race. A middle ground post-Seattle might be to balance schools by income, thereby avoiding any legal review or analysis. Federal courts do not usually get involved in a state's local affairs absent some illegal activity or protected class, and rich/poor is a category that is not illegal nor protected. America spends 400 billion dollars a year on schools, according to Revolutionary Wealth by Alvin Toffler. With that much money, perhaps the "pie" is still big enough to focus on economic rather than judicial solutions to improve school quality.