Justice Stevens, Guantanamo, and the Rule of Law

Below is the first essay for our thirty-day series on John Paul Stevens, by Daniel A. Farber, the Sho Sato Professor of Law at Berkeley.  Farber worked as a law clerk for Justice Stevens during the 1976 Supreme Court Term.

Perhaps because of his career as a litigator before he became a judge, Justice Stevens has always shown a deep appreciation for process values.  This attitude could appear in undramatic cases involving routine procedural issues.  It also figured heavily in a much more significant context: the dispute over whether detainees at Guantanamo after 9/11 were entitled to voice their claims in court.

The Bush Administration had chosen Guantanamo as a detention site in the belief that the military base was immune from federal habeas jurisdiction, allowing the executive branch to operate without any legal restraint. Justice Stevens played a key role in defending the rule of law against this effort by the executive branch to create a legal black hole. The ultimate question in the case was whether the President could operate outside the bounds of the Constitution. This historic confrontation between the Supreme Court and the executive branch illustrates Justice Stevens’s commitment to due process, his ability to create coalitions, and his judicial craftsmanship.

These opinions also exemplify the lawyerly nature of Stevens’s work.  Unlike Justice Scalia, he rarely plays to the galleries, larding opinions with nuggets meant to be quoted in the op-ed pages.  Instead, his opinions feature careful attention to the nuances of statutory language and precedent, analytic power.  The Guantanamo opinions are apt examples.

Justice Stevens’s first majority opinion involving Guantanamo was Rasul v. Bush, in which the Court held that the habeas statute covered Guantanamo. The Bush Administration had argued otherwise on the ground that Guantanamo was foreign soil.  This argument was an exercise in form over substance: the U.S. enjoys unlimited control over the base for the indefinite future, but the lease recites as a sop to Cuban sensitivities that Cuba retains “ultimate sovereignty” over the base.  Justice Stevens’s Rasul opinion carefully dissected the precedents on habeas jurisdiction outside the United States.  The result was a pivotal ruling in terms of the rights of the Guantanamo detainees, who would otherwise have had no access to federal courts in which to challenge their treatment. Justice Scalia wrote in dissent for himself, then-Chief Justice Rehnquist, and Justice Thomas.

Two years later, in Hamdan v. Rumsfeld, Justice Stevens led the Court in overturning the Bush Administration’s efforts to evade legal restrictions. His opinion built on Rasul and also showed that the Court was not inclined to acquiesce to congressional or presidential efforts to limit its jurisdiction.   Hamdan involved the use of military commissions to try enemy combatants under the first presidential order discussed earlier. In an opinion by Justice Stevens, the Court held that the President lacked the power to establish military tribunals under congressional enactments and under the Geneva Conventions. Specifically, the Court held that the military commission convened to try Salim Ahmed Hamdan, who allegedly served as Osama bin Laden’s driver and bodyguard, lacked the power to proceed because its structure and procedures violated both the Geneva Conventions and the Uniform Code of Military Justice.

Writing for the majority, Justice Stevens also reasoned that regardless of whether Hamdan had been charged with an offense generally cognizable by military commissions, the commission here did not have the authority to proceed because its procedures were illegal. Summarizing the Court’s holding, Justice Stevens said that “in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the rule of law that prevails in this jurisdiction.”

After Hamdan, Congress reacted by leaping into the detainee issue. The Military Commissions Act of 2006 (“MCA”) eliminated the writ of habeas corpus for any “alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”   As John Yoo said, “[I]t is a rare and extraordinary thing for Congress to checkmate the Supreme Court as it did,” and he wondered whether it would “serve as a sufficient warning to the courts not to meddle in the business of the political branches….”

As it turned out, Congress’s decision to step into the detainee issue did not deter the Court. The Court struck down the MCA’s jurisdiction-stripping provision in Boumediene v. Bush. In an opinion by Justice Kennedy, the Court held that the United States’ de facto sovereignty over Guantanamo was sufficient to bring it within the scope of the constitutional guarantee of habeas and that the MCA was therefore a violation of the Suspension Clause of the Constitution. Justice Stevens joined Justice Kennedy’s opinion and did not write separately. But as a concurrence by Justice Souter explained, Boumediene was a predictable extension of Justice Stevens’s opinion in Rasul.

Technically, Rasul rested on statutory grounds whereas Boumediene rested on constitutional grounds, but the language in Rasul suggested fundamental objections to depriving detainees of habeas protections. Thus, as the concurring Justices said, “[N]o one who reads the Court’s opinion in Rasul could seriously doubt that the jurisdictional question must be answered the same way in purely constitutional cases, given the Court’s reliance on the historical background of habeas generally in answering the statutory question.” In a vehement if not intemperate dissent, Justice Scalia  played to the galleries with an angry proclamation that the Court’s decision would “almost certainly cause more Americans to be killed,” and that the “Nation will live to regret what the Court has done today.”

Although the post-9/11 cases reflect special concerns relating to national security and presidential power, they also reflect preexisting disputes among the Justices about how to interpret statutes involving habeas jurisdiction. Justice Stevens’s support for habeas was not an ad hoc attempt to check the Bush Administration, but instead rested on a deeper commitment to ensuring access to the courts.  Indeed, his commitment had become clear in a decision involving habeas in immigration cases that was decided just before 9/11.

The immigration decision, INS v. St. Cyr, involved the application of newly enacted restrictions on the availability of habeas for aliens in the context of deportation. Justice Stevens  relied on a strong presumption in favor of judicial review of administrative action and on the longstanding rule requiring a clear and unambiguous statement of congressional intent to repeal habeas jurisdiction. In the Court’s view, “Implications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction; instead, Congress must articulate specific and unambiguous statutory directives to effect a repeal.” These clear statement rules were bolstered by the canon against interpreting statutes in ways that raise serious constitutional doubts. The Suspension Clause protects against legislative restrictions on habeas in deportation cases, and even in 1789 the case would have fallen squarely within the common law writ of habeas corpus. To conclude that the writ was no longer available in this context would have represented a marked departure from historical immigration law practice. Indeed, the Court said, “The fact that this Court would be required to answer the difficult question of what the Suspension Clause protects is in and of itself a reason to avoid answering the constitutional questions that would be raised by concluding that review was barred entirely.” In the Court’s view, none of the 1996 provisions clearly negated jurisdiction under the general habeas provision.

As in St. Cyr, Justice Stevens in Hamdan construed narrowly the restriction on judicial review enacted by Congress.  A key issue was whether the restriction applied to cases filed before its enactment.  In dissent Justice Scalia invoked what he claimed to be an inviolate rule that statutory restrictions on jurisdiction apply to all pending cases unless Congress plainly speaks to the contrary.  He relied primarily on nineteenth-century cases and on a 1950s case by Chief Justice Vinson quoting from the older cases.  Justice Stevens argued that the older cases were distinguishable – they had generally involved some indication that Congress wanted the statute to apply retroactively – and that post-1950 cases had changed the rules about statutory retroactivity anyway, even as to jurisdictional statutes.  As to the latter point, he was able to rely on some startlingly apropos language from an opinion by Justice Thomas.  On the whole, despite Scalia’s claims about the destruction of a centuries-old ironclad rule, Justice Stevens had the better of the dispute.

Justice Stevens’s post-9/11 habeas opinions have occasional flights of rhetoric, but for the most part they read like routine applications of technical legal reasoning. The rules regarding application of jurisdictional statutes to pending cases, for instance, are hardly the stuff of newspaper headlines.

Yet this rhetorical flatness is entirely in tune with the fundamental point of these decisions, which is that “the law” remains in effect and applicable even in times of crisis when national security is at stake. And “the law,” by and large, is boring and complicated. What these opinions stand for, both in rhetoric and in substance, is an insistence that the government abide by the law of the land. In particular, the government must respect the right of individuals to be heard in their own defense.