Emily Hartz

Hamdan v. Rumsfeld

In contradiction to both Rasul and Hamdi, the legal issue in Hamdan v. Rumsfeld was not Hamdan’s right to challenge his status as an enemy combatant. Instead, the legal issue was whether the executive had authority to try Hamdan in front of a specially convened military commission.

From Milligan to Boumediene: Three Models of Emergency Jurisprudence in the American Supreme Court

From Milligan to Boumediene: Three Models of Emergency Jurisprudence in the American Supreme Court This article aims to bring philosophical and legal aspects of the discussions of the problem of emergency together by employing classic philosophical views on the problem of emergency to categorize dominating paradigms of legal interpretation in the American Supreme Court. In the first part of the article I review the American Supreme Courts case-history and single out three dominating legal paradigms for interpreting the problem of emergency: the rights model, the extra-legal model and the procedural model. I argue that the procedural model has been by far the most influential. In the second part of the article I ask how this precedence has played out in the context of terrorism cases. I argue that the first four cases that were brought against the government confirmed the procedural model as the Courts primary model for evaluating legal problems related to emergencies. But I also argue that the Courts latest decision on this issue, Boumediene v. Bush from 2008, introduces a shift from the previous general tendency to rely primarily on a procedural model towards including substantial rights concerns.

The Extralegal Model

When Lincoln addressed Congress after his unilateral suspension of the writ of habeas corpus in the beginning of the Civil War, he asked: “are all the laws but one to go unexecuted and the Government itself go to pieces lest that one be violated?” (cited in McLaughlin, p. 622). Lincoln’s rhetorical question captures the dilemma at the root of any form of emergency governance: in times of severe crisis, political societies are faced with the problem that the law ties the hands of the government and may seem to prevent it from dealing effectively with a given threat. The extralegal solution to this dilemma is to set the law aside in order to deal effectively with the crisis (Hartz 2010a, p. 77; Hartz and Kyritsis 2010, p. 161). The point being, as expressed by Lincoln, that “if the Government should be overthrown, when it was believed that disregarding the single law would tend to preserve it,” the ethos of executive oath to “preserve, protect and defend the Constitution of the United States” obliges the executive to disregard that law. Lincoln’s expression of this dilemma is given in a political context. The point he makes in the political context raises the legal question of whether courts should embrace the idea that law may be set aside in order to deal effectively with a national crisis. In the following I refer to the jurisprudential model of emergency that embraces this idea as “the extralegal model.”

The Rights Model

The most famous United States Supreme Court case related to the problem of emergency is the case Ex Parte Milligan from 1866. The case is famous because of its ringing endorsement of the unchanging nature of fundamental constitutional rights.

Rasul v. Bush

Rasul v. Bush was the first case concerning suspensions of basic liberties in relation to the post-9/11 terrorism conflict to be heard by the Supreme Court. Rasul raised the question whether the federal courts had jurisdiction to hear habeas petitions filed by alien detainees held in detention facilities on Guantanamo Bay. Before Rasul, these detainees had been given no opportunity to contest the grounds of their detention in front of a neutral decision-maker (federal or military). In a response to this lack of legal process, petitioners in Rasul brought various habeas actions to the district court for the District of Columbia contesting the legality of their detention. Both the district court and Court of Appeals denied jurisdiction to hear the cases because petitioners were held on Guantanamo which is not United States territory. However, petitioners appealed to the Supreme Court maintaining that the federal courts did have jurisdiction to hear the petitions because the control exercised by the United States government on Guantanamo Bay amounted to sovereign control over the area.

From conditions of equality to demands of justice: equal freedom, motivation and justification in Hobbes, Rousseau and Rawls

Equal freedom is the common starting point for most contractual theories of justice from Hobbes and Rousseau to Rawls. But while equal freedom defines a common starting point for these theories, this does not result in a general consensus on the conception of justice. On the contrary, different ways of conceptualizing the contractual starting point leads to different conceptions of the demands of justice. To fully understand the relationship between equal freedom and justice we therefore first need to explicate how and why the initial condition of equality is transformed into demands of justice. In this paper we discuss how this transformation takes place in the theories of Hobbes, Rousseau and Rawls, with particular emphasis on the vexed relationship between motivation and justification.

Boumediene v. Bush

Boumediene consolidates two cases, both of which were filed by a group of Guantanamo detainees. The petitioners were all aliens. They filed their petitions after the Rasul Court decided that Guantanamo detainees had a statutory right to bring habeas corpus claims in United States federal courts. They all filed their habeas corpus claims in the United States district court for the District of Columbia.