Stephen I. Vladeck, American University, has posted two new articles that look to history for lessons that inform pressing contemporary problems of rights and security. The first is Enemy Aliens, Enemy Property, and Access to the Courts, which will appear in the Lewis and Clark Law Review. Here's the abstract: A frequent refrain in the contemporary debate over the role of the federal judiciary in the war on terrorism is that the courts have never before been open during “wartime” to individuals identified by the Executive Branch as “enemies.” By so thoroughly involving themselves in the current disputes, critics allege that the federal courts have become unwitting accomplices in “lawfare” by questioning - and sometimes invalidating aspects of - the Bush Administration's conduct of (and in) the war on terrorism. Although I elsewhere attempt to assess (and critique) the more theoretical implications of this view, the purpose of this symposium essay is to demonstrate, based upon a largely unexplored body of case law, that this conventional wisdom is neither “conventional” nor “wisdom,” but is instead an historical myth. To the contrary, U.S. courts have a long and rich history of hearing wartime cases where the government alleged that a private party was an “enemy,” and the private party maintained that he was not. The common law “enemy alien disability rule,” to whatever extent it remains viable, simply has no application to cases where there is a colorable question as to whether the relevant individual is, in fact, an enemy. To be sure, the courts have shown broad deference to the government in these cases, as a result of which the government has usually prevailed. But such outcomes have come only after thorough and searching analysis of the underlying jurisdictional fact - of whether the individual is, in fact, an “enemy” under the relevant definition.
The Suspension Clause as a Structural Right will appear in the University of Miami Law Review. Here's the abstract: The central point of disagreement between the majority and dissenting opinions in the D.C. Circuit in Boumediene v. Bush, the latest in a series of challenges to the detention of non-citizen “enemy combatants” at Guantánamo Bay, Cuba, is the question whether the Constitution's Suspension Clause applies in Guantánamo. In this symposium essay, I argue that both sides of the current debate are focusing on the wrong question because of a deeply rooted historical misunderstanding of the Suspension Clause. Retracing the original understanding of the Clause, the essay argues that the Suspension Clause was meant as a grant of authority to Congress to suspend the writ of habeas corpus in certain circumstances, rather than as a constraint on Congress's power thereto. As such, the Clause delineates the only circumstances wherein Congress may abridge the otherwise-available common law writ of habeas corpus. The problem, as the essay retraces, comes from reading together the Supreme Court's decisions in Ex parte Bollman (1807) and Tarble's Case (1872), the former of which precluded common-law habeas corpus in the federal courts, and the latter of which denied state courts the authority to issue habeas petitions against federal custodians. As I argue, although each decision is defensible on its own merits, together, they produce a constitutional conundrum vis-a-vis Congress's power over habeas corpus, and one that should limit Congress's power to completely preclude federal habeas jurisdiction over claims cognizable at common law to those cases authorized by the Constitution, i.e., "Cases of Rebellion or Invasion [when] the public Safety may require it."