US Jurisdiction in Guantanamo — Some Complexities

Earlier, I had what seemed like a great idea:

Personally, I would be prepared to read the words “the United States shall exercise complete jurisdiction and control” language of the treaty as invoking the powers of all three branches of government, not just the executive. In this view, under Art. VI of the Constitution (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”), the treaty would supply the jurisdiction for the federal courts that they seem to believe they lack under Article III.

On reflection, this isn't quite as great an idea as it seemed. Or, maybe it is, but it isn't as simple to get there as I would like.

First problem. Is the treaty-self executing? In the US, most treaties are presumed not to be self-executing, which means that Congressional action is required to give them domestic legal effect. A quick Westlaw search of the US Code reveals nothing that could be seen to give these agreements domestic legal effect except maybe for 18 U.S.C.A. § 7, which defines the “special maritime and territorial jurisdiction of the United States” in a way that might include Gitmo. Even if it does, all it does is make various aspects of US criminal law applicable, not civil suits. I think it ought to be the rule that acquisitions of jurisdiction are self-executing; it's not at all clear that the Supreme Court agrees.

Second problem. Supreme Court precedent. A little research showed that the Supreme Court makes a rather arbitrary distinction between a mere “possession” over which the US has full control, and territory over which it has “sovereignty”. One could question the wisdom, indeed the meaningfulness, of this distinction, but it's there in the cases, at least in the statutory construction context.

United States v. Spelar, 338 U.S. 217 (1949), concerned a Federal Tort Claims Act claim arising from an airplane crash at Harmon Field, Newfoundland, an air base leased for 99 years by Great Britain to the United States. In the course of holding that the air base was a in “foreign country” for purposes of the FTCA because it was subject to British sovereignty, the Court stated, “We know of no more accurate phrase in common English usage than 'foreign country' to denote territory subject to the sovereignty of another nation.” So by this logic Gitmo is a mere possession, not part of our sovereignty. And our statute laws don't run there unless Congress explicitly makes them extra-territorial. Without researching more, I don't know if that necessarily limits claims arising directly under the Constitution, especially habeus claims, but it imposes a potential jurisdictional bar that needs surmounting.

Justice Frankfurter concurred in Spelar, anticipating the modern problem,

The Court's opinion finds the phrase 'foreign country,' in that Act's restriction against 'claims arising in a foreign country,' to be as compelling in excluding the Newfoundland air base, under the kind of control that the United States exercises at these bases, as less than a year ago it found the term 'possessions' in the Fair Labor Standards Act to be compelling in including these bases. Vermilya-Brown Co. v. Connell, 335 U.S. 377, 69 S.Ct. 140. To assume that terms like 'foreign country' and 'possessions' are self-defining, not at all involving a choice of judicial judgment, is mechanical jurisprudence at its best. These terms do not have fixed and inclusive meanings, as is true of mathematical and other scientific terms. Both 'possessions' an 'foreign country' have penumbral meanings, which is not true, for instance, of the verbal designations for weights and measures. It is this precision of content which differentiates scientific from most political, legislative and legal language.

A 'foreign country' in which the United States has no territorial control does not bear the same relation to the United States as a 'foreign country' in which the United States does have the territorial control that it has in the air base in Newfoundland. In the entangling relationships between such nations as Great Britain and this country, it is not compelling that 'foreign country' means today what it may have meant in the days of Chief Justice Marshall, or even in those of Mr. Justice Brown. The very concept of 'sovereignty' is in a state of more or less solution these days. To find a single and undeviating content for 'foreign country' necessarily excluding these bases, while 'possessions' of the United States is to be deemed as necessarily including them, despite the momentum of historic meaning and experience leading to a contrary significance of 'possessions,' is to give the appearance of logically compulsive force to decisions. It fails to recognize the scope of supple words that are the raw materials of legislation and adjudication and is unmindful of those considerations of policy which underlie, consciously or unconsciously, seemingly variant decisions. When so many able judges can so misconceive the implications of our decision in Vermilya-Brown Co. v. Connell, supra, as they have been found to misconceive them, the source of difficulty cannot be wholly with these able lawyer court judges.

Note: Brad DeLong linked to my earlier effort and commented that Guantanamo Bay is a gap in seisin-it is a terra sine domine, a land without a lord, and among the oldest principles of the Feudal and Ancient Common Law is that such a gap in seisin is impossible—that for every square inch of the earth not currently engaged in active military operations, there is a normal peacetime court to take jurisdiction and judge offenses.

I regret to say that our courts are all too comfortable with such gaps. The leading example is Smith v. United States, 507 U.S. 197 (1993), which I used to use as the last reading in my Jurisprudence class. In Smith the Supreme Court held that Antarctica was a “foreign country” for FTCA purposes, even though it was not a country and is “a sovereignless region without civil tort law of its own”. Justice Stevens wrote a brilliant dissent.

It begins,

In my opinion the Court's decision to grant certiorari in this case was a wise exercise of its discretion. The question whether the United States should be held responsible for the tortious conduct of its agents in the vast “sovereignless region” of Antarctica, ante, at 1180, is profoundly important, not only because its answer identifies the character of our concern about ordinary justice, but also because Antarctica is just one of three vast sovereignless places where the negligence of federal agents may cause death or physical injury. The negligence that is alleged in this case will surely have its parallels in outer space as our astronauts continue their explorations of ungoverned regions far beyond the jurisdictional boundaries that were familiar to the Congress that enacted the Federal Tort Claims Act (FTCA) in 1946….

The issue at the heart of all this is that I think it ought to be the rule that, as Mr. Dooley put it, 'th' constitution follows th' flag. The Navy, the President, his minions, all derive their power from[*] the Constitution. They must take the bitter with the sweet, and accept the shackles of due process and habeus corpus that come with the great power entrusted to them. I wish I were more confident that the Supreme Court will see it that way.

Don't underestimate what's at stake here. A ruling that there's no way for the Gitmo detainees to get a court to consider their plight may be one that requires no judicial creativity, but it is a ruling that even if they were being killed or tortured by our government (and there are allegations being made by some that prolonged solitary confinement, without any idea how long you will be held, amounts to torture) our courts will not hear them. That should bother you. It bothers me.

[*] typo corrected.