Person:

Meltzer, Daniel J.

This Article provides a broad-lens, synoptic perspective on war-on-terrorism questions arising within the habeas corpus jurisdiction of the federal courts. Analytically, it develops a clear framework for sorting out the tangle of jurisdictional, substantive, procedural, and scope-of-review issues that habeas cases often present. Methodologically, it champions a common law–like approach to habeas adjudication under which courts must exercise responsible judgment in adapting both statutory and constitutional language to unforeseen exigencies.

The Article also takes substantive positions on a number of important issues. In the jurisdictional domain, it defends the Supreme Court’s controversial decision in Rasul v. Bush, which interpreted the habeas statute as it then stood to authorize inquiry into the lawfulness of detentions at Guantánamo Bay. The Article also argues, however, that a court would overstep if it read the Constitution as mandating review of detentions of aliens in such wholly foreign locales as Afghanistan or Iraq. Scrutinizing post-Rasul legislation that eliminates habeas for alien detainees and substitutes more limited review in the D.C. Circuit, the Article argues that the resulting scheme is constitutionally valid as applied to most cases in which the D.C. Circuit can exercise review, but invalid insofar as it entirely precludes detainees in the United States or at Guantánamo Bay from challenging their detention or conditions of confinement before a civilian court.

With respect to substantive rights, the Article argues that American citizens seized outside of battlefield conditions have a right not to be detained indefinitely without civilian trial. It explains why the constitutional rights of noncitizens are more limited, but argues that existing statutes should not be read to authorize aliens’ detention as enemy combatants when they are seized in the United States, away from any theater of combat. Finally, the Article analyzes some of the most important procedural and scope-of-review questions likely to come before habeas courts.

The European Community (EC) and the United States have contrasting approaches to the place of member state liability to private parties as a remedy for the violation of the law of the union. The EC recognizes a general doctrine of member state liability in damages for violations of EC law, while American states generally possess sovereign immunity from private damage claims for violations of federal law. This contrast is paradoxical, as one would expect the U.S., a better established and more powerful federal polity, to have fewer concerns about the imposition of state liability than the less powerful and more fragile EC.

A cluster of differences between the EC and the U.S. helps to account for this paradox. These differences include the factual circumstances of their respective seminal cases; the historical settings in which they arose; civil law systems' greater hospitality to governmental liability as compared to common law systems; stronger political control over judicial appointments in the U.S.; and EC member states' stronger safeguards against unwelcome federal legislation. Collectively, these differences help to explain why state liability was deemed more important to the center and less threatening to the member states in the European Community than in the U.S.