Legal Opinions - U.S. Supreme Court: June 30, 2008

Daily Record, The (Baltimore), Jun 30, 2008

Practical considerations likewise influenced the Court's analysis in Reid v. Covert, 354 U.S. 1, where, in applying the jury provisions of the Fifth and Sixth Amendments to American civilians being tried by the U. S. military abroad, both the plurality and the concurrences noted the relevance of practical considerations, related not to the petitioners' citizenship, but to the place of their confinement and trial.

Finally, in holding that habeas jurisdiction did not extend to enemy aliens, convicted of violating the laws of war, who were detained in a German prison during the Allied Powers' post-World War II occupation, the Court, in Johnson v. Eisentrager, 339 U.S. 763, stressed the practical difficulties of ordering the production of the prisoners, id., at 779.

The Government's reading of Eisentrager as adopting a formalistic test for determining the Suspension Clause's reach was rejected because: (1) the discussion of practical considerations in that case was integral to a part of the Court's opinion that came before it announced its holding, see id., at 781; (2) it mentioned the concept of territorial sovereignty only twice in its opinion, in contrast to its significant discussion of practical barriers to the running of the writ; and (3) if the Government's reading were correct, the opinion would have marked not only a change in, but a complete repudiation of, the Insular Cases' (and later Reid's) functional approach.

A constricted reading of Eisentrager overlooks what the Court saw as a common thread uniting all these cases: The idea that extraterritoriality questions turn on objective factors and practical concerns, not formalism.

The Government's sovereignty-based test raised troubling separation-of-powers concerns, which were illustrated by Guantanamo's political history. 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 that. 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. Those concerns had particular bearing upon the Suspension Clause question here, for the habeas writ is itself an indispensable mechanism for monitoring the separation of powers.

Based on Eisentrager, supra, at 777, and the Court's reasoning in its other extraterritoriality opinions, at least three factors were relevant in determining the Suspension Clause's reach: (1) the detainees' citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ.