The Problem of Jurisdictional Non-Precedent

Most critiques of the Supreme Court\u27s June 2008 decision in Boumediene v. Bush (including Justice Scalia\u27s dissent in the same) have at their core the argument that Justice Kennedy\u27s majority opinion is inconsistent with prior precedent, specifically the Supreme Court\u27s 1950 decision in Johnson v. Eisentrager. A closer read of Eisentrager, though, reveals a surprisingly unclear opinion by Justice Jackson, that seems to go out of its way to reach various issues on the merits even after suggesting that the federal courts lacked jurisdiction over habeas petitions filed by 22 Germans convicted of war crimes by a U.S. military tribunal in China. Put another way, it is hard to understand the scope of the rule that the Eisentrager majority thought it was enunciating, and therefore the extent to which it should have also applied in the Guantanamo cases. This problem is not unique to Eisentrager, though. In the Court\u27s June 2008 decision in Munaf v. Geren, it also brushed aside a post-World War II precedent -- the 1948 decision in Hirota v. MacArthur, again because it was not clear exactly which facts the earlier jurisdiction-precluding decision relied upon. As I explore in this essay -- part of the Tulsa Law Review\u27s annual Supreme Court review -- these decisions are emblematic of a judicial methodology that is no longer in vogue, thanks to the Supreme Court\u27s 1998 decision in Steel Co. v. Citizens for a Better Environment. After Steel Co., federal courts can no longer reach issues over which they lack jurisdiction, and so are far more careful to resolve jurisdictional questions at the outset, before moving on (where possible) to the merits. But what effect does Steel Co. have on prior precedent, where the Court\u27s decision leaves unclear how much the merits actually mattered? As I explore in this essay, Steel Co. may itself compel that contemporary courts narrowly construe jurisdiction-precluding rules in cases like Eisentrager and Hirota, on the assumption that those courts would not have analyzed questions the answers to which could not have mattered. Reasonable people may disagree about whether Boumediene and Munaf were rightly decided, but the critical point for present purposes is that both were decided on jurisprudential clean slate

Inchoate Liability and the Espionage Act: The Statutory Framework and the Freedom of the Press

The debate over the proper balance between national security and freedom of the press has increasingly focused on the media\u27s potential criminal liability for publishing sensitive information, as was threatened after the New York Times and the Washington Post disclosed the U.S. government\u27s secret and warrantless wiretapping of domestic phone calls. With the issue of press liability for the publication of national security information, however, comes a bevy of difficult questions concerning the scope of the protections afforded to the press under the First Amendment. This essay attempts to survey these questions in light of the absence of an overarching framework statute, akin to England\u27s Official Secrets Act, that in clear and sweeping terms specifies the means and manner in which the press may be held criminally liable for publishing sensitive information. As this essay explains, the statutory framework governing the complicated balance between governmental secrecy and the freedom of the press in the United States is little more than a disorganized amalgamation of unconnected provisions. Some of the provisions overlap and border on redundancy. Others are difficult to parse, and cannot possibly prohibit what their plain language appears to suggest. Still others, when read together, seem to promote mutually inconsistent policy goals. Yet, because the Espionage Act prohibits even the possession of sensitive national security information, one of the most important questions, going forward, is the potential liability reporters face for newsgathering, as opposed to reporting, in the national security field. Because the Press Clause has not traditionally been understood to protect actions short of publication, the real threat to the freedom of the press, this essay suggests, is the openendedness of the relevant statutes when read together with theories of inchoate liability

Deconstructing Hirota: Habeas Corpus, Citizenship, and Article III

The jurisdiction of the federal courts to consider habeas petitions brought by detainees held as part of the “war on terrorism” has been a popular topic for courts and commentators alike. Little attention has been paid, however, to whether the Constitution itself interposes any jurisdictional limits over such petitions. In a series of recent cases, the US government has invoked the Supreme Court’s obscure (and obtuse) 1948 decision in Hirota v. MacArthur (338 US 197) for the proposition that Article III forecloses jurisdiction over any petition brought by a detainee in foreign or international custody, including that of the “Multinational Force—Iraq.” This article disputes that argument, along with the citizenship-based distinction that the courts in the current cases have thus far drawn to distinguish Hirota, and explains why Article III imposes no such bar, even where the detainee is not a U.S. citizen. Instead, Article III only bars such a petition if the detainee is not in the actual or constructive custody of the United States. The author concludes that the distinction that courts have drawn in the current cases is not only untenable, but is indicative of Hirota’s deeper flaw—namely, that it misconceived the relationship between Article III, citizenship, and habeas corpus, and obfuscated the more important debate over the scope of the substantive rights enforceable through the “Great Writ.

Democratic Competence, Constitutional Disorder, and the Freedom of the Press

In Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, Robert Post offers a powerful argument for why the First Amendment should protect the manner in which professional disciplines produce expert speech. This symposium Essay responds to Post’s book by focusing on the potential interaction between Post’s theory of “democratic competence” and the freedom of the press. Using the WikiLeaks affair as a foil, this Essay concludes that a “democratic competence” approach might provide a more coherent theoretical underpinning for according constitutional protection to newsgathering (as distinct from publication), and might thereby help to answer the unanswerable question about what the First Amendment’s Press Clause actually protects. By the same logic, though, it might also provide for greater restraint on the media insofar as it constitutionalizes conventional arguments about the need to honor the government’s expertise when protecting national security secrets against public dissemination. Thus, the question Post really raises is whether such a deeper but narrower First Amendment is one to which we should aspire