[continued]
Judge Robertson admits that the third rejoinder, "Hamdan argues that, after several years in a territory within 'the complete jurisdiction and control' of the United States, his relationship with the United States is more extensive than those of petitioners in Eisentrager," merits a bit more discussion. Probably more than offered, though.
United States v. Verdugo-Urquidez (1990) is an important precedent in this respect; Robertson cites it as such. This involved the constitutionality of a search performed in Mexico for property of Mexican nationals held in U.S. custody. The majority opinion noted that the Fourth Amendment "right of the people" did not apply to property outside of our jurisdiction. Note how even here the Fourth Amendment (and rights of "the people") was separated from those given to "persons," including those in the Fifth Amendment. Namely, some of the securities demanded here.
[As a preliminary aside, note the "after several years," and compare it to Justice Kennedy's concurrence in Rasul, that suggests some brief detention -- maybe even months -- might be acceptable in this context, but not one extended too far. Such nuances pop up when you start to think "hmm ... something is different here." They can be papered over more easily, however, when quickie analysis is used.]
Justice Stevens' concurred separatedly. Justice Kennedy, though he joined the majority, also concurred. His concurrence, however, underlined that he did not join all the dicta of the majority, a key matter since Rasul cited his concurrence. And, overall, it helps to reign in excessive use of the majority opinion in contexts not relevant. Justice Kennedy, for instance, did not accept the sentiment that "the people" somehow was a term of art that decided the case against the claimants. Yes, unlike Stevens, he clearly said that searches of foreign residences was not covered. But, this is not really relevant in this context. Gitmo is not a foreign locale. A search of the Mexican nationals in a U.S. jail would surely still involve Fourth Amendment concerns.
Judge Robertson argues that Hamdan's "connection to the United States lacks the geographical and volitional predicates necessary to claim a constitutional right to habeas corpus." As to "geographical," the opinion notes that the "detention facility lies outside the sovereign realm, and only U.S. citizens in such locations may claim entitlement to a constitutionally guaranteed writ." But, Justice Kennedy's controlling opinion (cited as such in the detainee cases) was not so limited. For him, the locale of detention was key ... at least in respect to Gitmo, security is warranted. As he noted in V-U:
I do not mean to imply, and the Court has not decided, that persons in the position of the respondent have no constitutional protection. The United States is prosecuting a foreign national in a court established under Article III, and all of the trial proceedings are governed by the Constitution. All would agree, for instance, that the dictates of the Due Process Clause of the Fifth Amendment protect the defendant.
Again, we are talking about a Mexican national whose only "legal" presence in the U.S. is as a prisoner. As Justice Stevens noted in his concurrence, an "alien lawfully within the sovereign territory of the United States is entitled to the protection of our laws." Gitmo is such a territory, and yes, Hamdan is -- ironically enough -- legally there. Is the fact Hamdan is set to be tried in an Art. I (Art. II?) (military) court supposed to change things? Why? The clear sentiment in Rasul, even if it only had to rely on statutory protection (but focused on the jailer, the government ... as others note ... underlining why jurisdiction should apply -- we have an interest in stopping lawless government officials), was that aliens in his position had rights.
[As an aside, the judge tosses in a passing reference to United States v. Curtiss-Wright Export Corp., a 1930s ruling that many deem an unsound over the top unilateralist view of executive power in foreign relations, one not compelled by other cases. Justice Kennedy in the Mexican drug case cited also has such a passing reference, but still made sure to note that even if we have a fairly open-ended view of executive discretion in foreign affairs, there are constitutional limits.]
Perhaps, though I am rather dubious, Judge Robertson was right ... he surely was not compelled by precedent to decide the way he did. If anything, it seems to go the other way. Robertson sees some need for a "volitional" connection to the U.S. to warrant habeas rights. As I referenced above, he notes that "the majority in Rasul cited several other examples of pre-1789 habeas petitions brought by aliens detained within the sovereign territory or elsewhere within the sovereign's control" only to dismiss its soundness for cases of this sort. [Gitmo deemed a historical anomaly, though it does remind me of the Philippines, once similarly held by the U.S., also the locale of many alleged enemy combatants in custody.]
Instead, we are referred to a WWII case, ironically written by Justice Black -- who dissented in Eisentrager, finding its stripping of habeas even for convicted enemy aliens held on German soil where they could apparently obtain relief from Germany (Hamdan is only accused, held on soil controlled by the U.S., and cannot obtain relief from Cuba) outrageous. Later cases really are more worthy for clarification of this issue. I'd add, see my al-Marri posts, "volitional" connections very well might be relevant in some cases -- such as for treason charges.
But, a ruling upholding the right of a Japanese internee to obtain relief for back pay is not that helpful, is it? Ex parte Kawato concerns someone who is worthy of judicial relief. And, the tone of the opinion is revealing: "The policy of severity toward alien enemies was clearly impossible for a country whose life blood came from an immigrant stream." Also, a rule referenced suggests a low bar: "A lawful residence implies protection, and a capacity to sue and be sued." See above for what "lawful" appears to mean in this context. As to the "sue" prong, basically the fact this case is about just that issue highlights the slim value of the ruling.
And, a reference to those who "seek our shores-a chance to make his home and work in a free country, governed by just laws" would suggest those here on long vacations might be held without hearing, since they had no intention to stay. Justice Black, however, was not concerned about such possibilities -- his later dissent would suggest he would be upset if that was the result -- the claimant here clearly having a right of access to federal court. This was also shown by the opinion's statement that we need not look too closely at treaties when they are not really relevant. Again, this is a different situation. Overall, though hey maybe I'm interpreting it wrong, we see the result here was not compelled by precedent.
Congress is at fault for changing over two hundred years of precedent and stripping aliens of habeas rights. Sure. But, habeas is a common law right that grew in force in English courts, courts being the ultimate security of the rights involved here. So, the courts have a special responsibility as well, especially when upholding stripping people of basic rights, even when case law appears to go the other way. IOW, unnecessarily (and wrongly) holding that "persons in the position of the respondent have no constitutional protection."
BTW, on December 15, 1791, the U.S. adopted the Bill of Rights.