ON RASUL v. BUSH

After listening to the oral argument file for Rasul v. Bush (the Gitmo case) and doing some research on the case yesterday, here are a few thoughts:

1) The detainees' lawyer, John Gibbons, argued that the administration has attempted to create a zone under American control where no law applies but the executive's will. This (the zone) is fundamentally a bad idea, it seems to me. Law is a means of regularizing and checking power. There are certainly conditions under which power has the upper hand and should have the upper hand. Combat units shouldn't need lawyers with them in foxholes. But there is law that applies to war; UCMJ, various conventions. Even in the combat zone, law is not absent.

2) History supports this contention that lawless zones are anathema to our traditions of law. An amicus brief submitted by several legal historians argued that even before the British asserted formal sovereignty over territories controlled by the East India Company, for example, courts entertained writs of habeas corpus in those territories. The existence of a merely conventional recognition of "formal sovereignty" in our treaty with Cuba for the use of Gitmo -- a place where, as Justice Souter noted yesterday, "we even protect the Cuban iguana" -- is not a strong enough reed upon which to build a case for absolute executive power without judicial oversight in any form whatsoever.

3) Even people designated as unlawful combatants are entitled to "some process," in Justice Ginsburg's phrase from yesterday. The administration wants to argue both that it has engaged in some process and that the courts should never be involved in making sure that statement is true, in even the most minimal and perfunctory way. Nonetheless, some kind of minimal oversight is necessary to make sure that the executive branch is affording some process. The basic point of the writ of habeas corpus, it seems to me, is to make sure that custodians -- the jailers -- are acting in a lawful manner. (And there was some argument along those lines yesterday.)

4) The central question is not simply whether the Constitution alone requires the courts to hear the habeas petitions in this case. Eisentrager seems to stand for that position, as Eugene Volokh notes (approvingly; see here as well). Justice Stevens spent a lot of time yesterday pointing out that the law has changed since Eisentrager was decided, both because the habeas corpus statute has been modified by Congress and because a subsequent Supreme Court decision, Braden, called Eisentrager into question. Scalia disputes this interpretation of Braden, apparently. But the argument that Stevens makes needs to be taken seriously. The Justices must give a fair and complete a reading of the value of Eisentrager as precedent; that's part of their job as official interpreters of public texts and as official participants in a process of what Lief Carter and Thomas Burke call "public justification." And at any rate, stare decisis is surely a weaker norm when fair arguments exist that challenge the validity of a precedent. I would bet that few people have actually relied on Eisentrager, for example, after Braden was decided. So after Braden, at least, the central question seems to be whether the Constitution along with the habeas statute requires courts to hear the petition.

5) Finally: Ted Olson owes Scalia a beer. Scalia came to his rescue four times yesterday, by my count.