Habeas Schmabeas

The 60-year-old case that will decide Guantanamo.

In the spring of 1941, a 46-year-old German intelligence officer named Lothar Eisentrager slipped across the Soviet-Chinese border and made his way to the Pacific port of Shanghai. There he assumed the name of Ludwig Ehrhardt and took charge of German espionage operations for the entire Far East—a mission that would ultimately lead to his conviction as a war criminal by an American military commission, a stretch at a U.S. Army prison in Bavaria, and a failed bid for freedom at the U.S. Supreme Court. Today, Eisentrager’s long-forgotten case has re-emerged at the center of another Supreme Court struggle over the Bush administration’s war on terrorism.

Next week, the justices will hear oral argument in appeals brought by 16 foreign nationals, held at the U.S. naval base in Guantanamo Bay, Cuba, who are accused of ties to al-Qaida and the Taliban. The court’s decision could be one of its most important statements ever on executive power in wartime. As Eisentrager once did, the detainees seek the right to petition for a writ of habeas corpus in the U.S. District Court in Washington, D.C. Put simply, they want a day in court. The Bush administration says American courts have no jurisdiction to hear their petitions because they are enemy combatants and foreign nationals, held outside U.S. territory. (Under a century-old lease with Cuba the United States has “jurisdiction and control” at Guantanamo, but Cuba retains “ultimate sovereignty.”) Therefore, the administration argues, the United States can hold them on Guantanamo indefinitely, without access to counsel or other legal rights.

As authority for this proposition, the administration cites the Supreme Court’s June 5, 1950, ruling in Johnson v. Eisentrager, in which the court held that the constitutional guarantee of habeas corpus does not apply to enemy aliens who, like Eisentrager and his 20 German co-respondents in the case, were detained by the United States on foreign soil. So far, a district judge in Washington and the U.S. Court of Appeals for the District of Columbia Circuit have agreed with the Bush administration.

But should Eisentrager control the outcome of the Guantanamo case? Lawyers for the detainees say the situations then and now differ significantly. When the German Reich capitulated on May 8, 1945, Eisentrager and other China-based Germans found themselves thousands of miles from a devastated homeland with no mission and no money. Approached by representatives of the Japanese high command, they signed contracts to help Japan’s military. Until Japan surrendered the following August 15, the United States later charged, these Germans supplied the Japanese with intercepts of U.S. naval communications (including key information during the Battle of Okinawa), German-made aircraft parts, and tens of thousands of leaflets aimed at U.S. troops.

In early 1946, the Germans were rounded up by the American Military Mission in China, and an American military commission convened in Shanghai that fall to hear the case against them. Their post-V-E collaboration with the Japanese was prosecuted as a war crime—specifically, contributing to the military efforts of the United States’ enemies after their own country’s unconditional surrender.

The charge was creative, but the proceeding was no kangaroo court. The Germans’ U.S.-supplied defense lawyers fought vigorously, winning acquittals for six defendants. But, in January 1947, 21 others were convicted and sentenced to prison in the U.S. occupation zone in Germany. Eisentrager got a life term.

From prison, however, Eisentrager was able to contact an American lawyer. On April 26, 1948, he filed for a writ of habeas corpus in the U.S. District Court in Washington. On Sept. 30, 1948, Judge Edward A. Tamm dismissed the petition in a four-paragraph opinion. Since the Germans “are not now and have never been in the United States,” Tamm wrote, they had no case. In April 1949, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously reversed, holding that the constitutional guarantee of habeas corpus applied to conduct by U.S. government officials, wherever they might be.

The Truman administration appealed to the Supreme Court. In his brief, Solicitor General Philip B. Perlman argued that, even if the Constitution follows the flag, as the D.C. Circuit had ruled, “it does not necessarily follow … that a judicial remedy is available. … There are many instances, particularly in the realm of foreign affairs and the conduct of war, in which the Executive is the primary and often the sole guardian of the Constitution.” Eisentrager’s lawyers countered that this “would make the exercise of fundamental rights depend on the accident of locus of incarceration.”

Within the court, Justices William O. Douglas, Hugo Black, and Harold Burton supported the Germans. But Justice Robert H. Jackson, the former prosecutor at the Nuremberg international war crimes trials, commanded a six-justice majority in favor of the government’s position. His strong rejection of the Germans’ claims implies that he feared a precedent that might undermine war crimes convictions in Europe more generally. “To grant the writ to these prisoners might mean that our army must transport them across the seas for hearing,” he wrote.

This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy.

Black, the great civil libertarian, seems to have been quite outraged. A draft of his dissenting opinion includes a sentence noting acidly that the Germans were being punished for doing what “any patriotic American” would have done, had they been stranded far away from a defeated homeland. Douglas urged Black to take that language out, and it does not appear in the published version, which both Douglas and Burton joined. “Habeas corpus, as an instrument to protect against illegal imprisonment, is written into the Constitution,” Black’s opinion says. “I would hold that our courts can exercise it whenever any United States official illegally imprisons any person in any land we govern. Courts should not for any reason abdicate this, the loftiest power with which the Constitution has endowed them.”

It’s no surprise that Jackson’s opinion is heavily quoted in the Bush administration’s Guantanamo brief today—or that Black’s dissent is reprised in the arguments raised by the detainees’ legal teams. The legal principle at stake then and now is almost identical.

But in what may prove crucial ways, the facts of the cases are dissimilar. Jackson wrote “that the Constitution does not confer … an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.” Yet, unlike the China-based Germans, the Guantanamo detainees do not seek to overturn the verdict in a trial against them; they are demanding one. Nor are the two Britons, two Australians, and 12 Kuwaitis who are contesting their detention at Guantanamo “enemy aliens” in the sense Jackson meant—i.e., citizens of nations with which the United States is at war. Though allegedly hostile to the United States themselves, they are all citizens of friendly countries.

Why might these distinctions make a difference? They are not indisputably related to the jurisdictional question now before the court, but it is difficult to believe the court will be as sanguine about denying habeas jurisdiction in the context of prisoners who have had nothing like the substantial judicial process Eisentrager and company enjoyed. In addition, although Guantanamo is clearly not as much a part of the United States as, say, the old Panama Canal Zone was, it is also clearly not as foreign as postwar China or occupied Germany. Thus, the court may conclude that the unusual extent and duration of U.S. control there could justify jurisdiction in that one place.

Even though they lost their case, Eisentrager and his co-defendants soon won their freedom. By 1950, the Truman administration was feeling pressure for leniency toward German war criminals; both within the United States and a fledgling West Germany, the argument was made that friction over war crimes prosecutions hurt U.S.-West German unity against the Soviet Union. Truman set up a clemency process that, continued by the Eisenhower administration, resulted in the emptying of the U.S. prison for German war criminals by 1958. In Eisentrager, ironically, the Truman administration won the legal authority to deal with German war criminals as it pleased, and then, for political reasons, used that authority to let them go.

The final lesson of Eisentrager may be that politics can succeed even where law fails. If today’s Guantanamo detainees lose in the Supreme Court, they need not despair of ever being released. The day may come when friendly governments say “enough” with the same sort of impact that West Germans and other critics of that era’s war-crimes process had half a century ago. Indeed, in the face of diplomatic pressure and public outrage in Europe over the “legal black hole” in Cuba, the Bush administration has already let two British citizens named in the case go back home—before it lost a single court ruling on Guantanamo.