With this post I continue to share with the class and interested "others" summary study notes for the course readings. For this post we continue to consider tsection II of the materials: II.D. Hierarchies of Law and Governance: The Relationship of Law and the Government of the State--Role of Law/Rule of Law). Comments and discussion most welcome.
The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.
--United Nations Rule of Law, “What is the Rule of Law."
--Norhiro Urabe, “Rule of Law and Due Process: A Comparative View of the United States and Japan,” Law and Contemporary Problems 53(1):61-72 (1990).
-- David Clark, “The Many Meanings of the Rule of Law”.
--Hamdi v. Rumsfeld, 124 S Ct 2633 (2004) READ PARTS I, III. Available http://www.law.cornell.edu/supct/pdf/03-6696P.ZO.
--Mary Crock and Daniel Ghezlbash, “Due Process and Rule of Law as Human Rights: The High Court and the ‘Offshore’ Processing of Asylum Seekers,” available . READ 1-9.
For the second part of this course, we have been considering the relationship between law and the organs of state government. We have explored the two principal models that are the foundation of the organization of virtually every state in the West and many in most other parts of the world to some extent. We then examined the way in which law and any manifestation of the organs of government are ordered. We have come to understand the foundational importance of hierarchy in the structuring of law systems and of their relationship to government. We have examined in that connection the relationship between government and the "higher law" of the constitution in the West. We then examined the consequences of a systems structured with a higher law at its top and government and subordinate law forms extending beneath it. Lastly we considered the traditional relationship between the law inside a state--its domestic legal order--and the law outside of the state. The latter, now understood as international law, has undergone substantial changes since 1945 and the creation of a governance architecture built around international organizations, the United Nations, World Trade Organization, regional human rights courts and the like. Simultaneously, the ability of states to protect their domestic legal orders has been challenged as borders have become more porous to transactions in goods, capital, services and to a lesser extent, people, in a process usually understood as economic globalization. Together, these trends have made it harder for states to shut international out of their domestic legal orders; but not entirely. We ended our last class with a consideration of Medillin, the Supreme Court's embrace of a very traditional and historically conventional approach to protecting the borders between domestic and international lawmaking within the United States. Medellin is not a unique expression of American values. It is reflected in the ideologies of important sectors of the American political class as well (e.g., President Bush's Second Inaugural Address: A Revolutionary Manifesto For International Law in Chaotic Times, Law at the End of the Day, April 1, 2006).
The normative basis for evaluating the proper conduct of a state, as the locus of political power within a defined territory, is to some large extent bundled up in the complex of concepts understood as the “rule of law:”
What we in the West have come to call the “rule of law” has always been a multi-edged sword. It is most commonly deployed to guard against arbitrary use of state power by people with access to that power. It is in this sense that the rule of law is perhaps best understood. In its basic political sense it encompasses ideals such as free and fair elections, protected through the instrumentalities of the state, principally the independent judiciary, against abuse by individuals. The rule of law can also be used to protect a polity against its own excesses. [Larry Catá Backer, Using Law Against Itself: Bush v. Gore Applied in the Courts, 55 Rutgers L. Rev. 1109, 1110-11 (2003). I noted there the growing influence of these notions outside the West, citing to the work of Anwar Ibrahim, an influential Malay politician: "For Ibrahim, the rule of law encapsulates three principles. . .The first is the predominance of regular law so that the government has no arbitrary authority over the citizen. . .Secondly, all citizens are equally subject to the ordinary law administered by the ordinary courts. . And thirdly, perhaps the most significant, the citizen’s personal freedoms are formulated and protected by the ordinary law, rather than by abstract constitutional declarations." Id. at 1109 n.1 (quoting Anwar Ibrahim, The Asian Renaissance 63 (1996)).
As a consequence, conformity of the state to accepted standards of rule-of-law notions tends to be measured only against the performance of the state—principally through its government. The core of this measure is focused on the regularization of rulemaking. Power must be exercised only through regular processes of rule making. [On process and rule of law, see Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law 257-301 (1998)]. Rules must apply fairly to all, and the mechanisms for their enactment and enforcement must also be applied fairly and equally to all. [“The idea of the rule of law is also inextricably linked with certain basic institutional arrangements. The fundamental notion of equality, which lies close to the heart of our convictions about justice and fairness, demands an equal voice for all adult citizens in the legislative process.” T.R.S. Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism 22 (1993). See also Thomas M. Franck, Fairness in International Law and Institutions (1997)]. No individual is above fairly enacted rules, nor is any individual delegated the power to make rules other than as part of systems for rulemaking that are representative and not inherently arbitrary. Additionally, all laws must respect certain boundaries of state power. Law must not be used for bad ends. While this moral or ethical component can take many forms, it generally encompasses behavioral norms now commonly understood to comprise an international system of human rights.
Political power is legitimate only when it is exercised in accordance with a constitution (written or unwritten) the essentials of which all citizens, as reasonable and rational, can endorse in the light of their common human reason. This is the liberal principle of legitimacy. It is a further desideratum that all legislative questions that concern or border on those essentials, or are highly divisive, should also be settled, so far as possible, by guidelines and values that can be similarly endorsed. (John Rawls, Justice as Fairness: a Restatement 41 (2001)).
The notion of the “rule of law” stems from many traditions and continents and is intertwined with the evolution of the history of law itself. The Code of Hammourabi, promulgated by the King of Babylon around 1760 BC, is one of the first examples of the codification of law, presented to the public and applying to the acts of the ruler. In the Arab world, a rich tradition of Islamic law embraced the notion of the supremacy of law. Core principles of holding government authority to account and placing the wishes of the populace before the rulers, can be found amid the main moral and philosophical traditions across the Asian continent, including in Confucianism. In the Anglo-American context, the Magna Carta of 1215 was a seminal document, emphasizing the importance of the independence of the judiciary and the role of judicial process as fundamental characteristics of the rule of law. In continental Europe notions of rule of law focused on the nature of the State, particularly on the role of constitutionalism. (Ibid).It then looks to recent efforts to formalize and combine these related global traditions into a working concept with legal and political implications. "The modern conception of the rule of law has developed as a concept distinct from the “rule of man”, involving a system of governance based on non-arbitrary rules as opposed to one based on the power and whim of an absolute ruler. The concept of rule of law is deeply linked to the principle of justice, involving an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs." (Ibid).
It notes that a version of the concept of Rule of Law has been universalized and embedded in the Charter of the United Nations.
In its Preamble, one of the aims of the UN is “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”. A primary purpose of the Organization is “to maintain international peace and security… and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.” The Universal Declaration of Human Rights of 1948, the historic international recognition that all human beings have fundamental rights and freedoms, recognizes that “… it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law…”
And it refers to a proffered definition put forward by the U.N. Secretary General:
“a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency." (Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies” (2004)) (Ibid., emphasis omitted).For the United Nations, Rule of Law is a concept that applies both to states and international organizations. It applies within domestic legal orders and to constrain the relationships among states.
At the national level, the UN supports a rule of law framework that includes a Constitution or its equivalent, as the highest law of the land; a clear and consistent legal framework, and implementation thereof; strong institutions of justice, governance, security and human rights that are well structured, financed, trained and equipped; transitional justice processes and mechanisms; and a public and civil society that contributes to strengthening the rule of law and holding public officials and institutions accountable. (Ibid).At the international level, the core notion of Rule of Law has been elaborated to some extent in the The Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations and applies to state to state relations
Drawn from existing commitments in international law, the core values and principles of the UN include respect for the Charter and international law; respect for the sovereign equality of States and the principle of non-use or threat of use of force; the fulfillment in good faith of international obligations; the need to resolve disputes by peaceful means; respect for and protection of human rights and fundamental freedoms; recognition that protection from genocide, crimes against humanity, ethnic cleansing and war crimes is not only a responsibility owed by a State to its population, but a responsibility of the international community, the equal rights and self-determination of peoples; and the recognition that peace and security, development, human rights, the rule of law and democracy are interlinked and mutually reinforcing.(Ibid).Taken together, the United Nations proffers a dual track but parallel system of Rule of Law ideology that is both drawn from the cultural and legal traditions of the major centers of world civilization, but that is then articulated by the community of nations in congress at the United United Nations, with application both to the organization of domestic legal orders (and the elaborations of constraints thereto) and to the organizational and operation of a parallel but equally binding system f international law. Rule of Law, then, comes up from the bottom but is formalized and protected from the top.
In our second reading, Norhiro Urabe, “Rule of Law and Due Process: A Comparative View of the United States and Japan,” Law and Contemporary Problems 53(1):61-72 (1990), suggests the optimism of the United Nations version of Rule of Law. Urabe considers the American embrace of rule of law by considering it from a perspective outside the United States. Urabe contrasts the thick rule of law that has become important in the ideology of American rule of law with the more process driven "thin" rule of law represented by modern conceptions of Rechtsstaat which he understands as "administration by law." (Ibid., 62).
In summary, the major distinction between the Rule of Law underlying Western constitutionañism and Rechtstaat or Rule of Law of German and Japanese origin is where power and rights are vested. The Western Rule of Law holds that `powers and rights vest naturally in individuals and that government is limited in its power to infringe upon these rights. On ther contrary, the Rechtsstaat, a more hierarchical tradition, holds that all powers and rights naturally vest in government, which then allocates rights and powers to its citizens. Rechtsstaat does not recognize any individual rights as fundamental; government and not nature is te source of individual rights. (Ibid., pp. 62-63).
-that no person is punishable except for a breach of law established in the ordinary manner before the ordinary courts of the land; this is in contrast to arbitrary power and excludes wide discretionary authority;Later versions, Clark notes, "stressed the formal rather than the substantive aspects of the law, and eschewed all connections with human rights or a Bill of Rights, or in fact,with a democratic political order of the western type." These purely procedural models might be reduced to notions that the term "in some states merely means that parties before a court are entitled to be treated in accordance with the rules in existence at the time the case is heard." (Ibid).
-that no man is above the law; that every person, whatever be his rank and condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals, or equality before the law and this excludes exemptions of officials or others from a duty to obey the law which governs citizens;
-that general principles of the constitution are the result of judicial decisions determining the rights of private persons in particular cases brought before the courts. (Ibid)
The problem with this view is that while it proved a way of distinguishing between arbitrary government, i.e., government where there are either no rules, or rules of a certain type, and the rule of law in the formal sense, this model was compatible with a range of political regimes including apartheid South Africa and even Nazi Germany, both of which had rules and laws. . . . Thus these condition ave a new substantive twist to the rule of law by saying something about the content of the rules themselves . . . . One argument for this approach is that unless there are such standards, governments will continue to treat their citizens, or some of their citizens, according to whim or even deliberate policies that entail abuses of human rights. This argument necessarily implies that national borders were permeable, and that governments did not have absolute sovereignty to do whatever they liked. (Ibid).
In practice, most rule of law systems recognise that large congeries of power are potentially dangerous and have sought to either divide power or at least balance off the various branches of government, and have also recognised that the executive in particular, ought to be accountable for what it does. . . .In practice, the operation of a rule of law state assumes that public officials are aware of the legal limits on their power, and will for the most part accept these limits. The evidence shows that this is not always so . . . , though this is normally not so widespread or blatant as to undermine the legitimacy of the legal system as a whole, but its corrosive effects on public sentiment towards the legal system ought not to be underestimated. . . .
Another assumption is that legitimacy comes from obeying the law, and in democratic systems by having attained power by free and fair elections; and also that the state recognises a relatively autonomous civil society consisting of voluntary organisations, . . . which the state does not directly control and in operations of which it does not interfere. (Ibid).
The facts of the case are straightforward:
This case arises out of the detention of a man whom the Government alleges took up arms with the Taliban during this conflict. His name is Yaser Esam Hamdi. Born an American citizen in Louisiana in 1980, Hamdi moved with his family to Saudi Arabia as a child. By 2001, the parties agree, he resided in Afghanistan. At some point that year, he was seized by members of the Northern Alliance, a coalition of military groups opposed to the Taliban government, and eventually was turned over to the United States military. The Government asserts that it initially detained and interrogated Hamdi in Afghanistan before transferring him to the United States Naval Base in Guantanamo Bay in January 2002. In April 2002, upon learning that Hamdi is an American citizen, authorities transferred him to a naval brig in Norfolk, Virginia, where he remained until a recent transfer to a brig in Charleston, South Carolina. The Government contends that Hamdi is an enemy combatant, and that this status justifies holding him in the United States indefinitely without formal charges or proceedings unless and until it makes the determination that access to counsel or further process is warranted. (Ibid., slip op. 2-3).Hamdi's father filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the Eastern District of Virginia. He argued that the detention of his son violated the 5th and 14th Amendments to the U.S.Constitution because he was being held indefinitely without charges or access to counsel. The government argued that indefinite detention was procedurally legitimate against enemy combatants during wartime. The district court ordered that counsel be given access to Hamdi. On appeal, a Fourth Circuit Court of Appeals panel reversed, finding that the district court had failed to extend appropriate deference to the security and intelligence interests of the Government in wartime. It remanded to the district court to conduct a "deferential inquiry into Hamdi's status." (Slip op. at 4). If it determined that Mandi was an enemy combatant, the 4Th Circuit opined, then the government's detention would be deemed lawful.On remand and after consideration of the so-called Mobbs Declaration (a statement from a Special Advisor to the Under Secretary of Defense fo0r Policy, the 4th Circuit eventually affirmed a dismissal of the habeas corpus petition (Slip op. at 8).
We will not spend time on the first issue considered by the Supreme Court. That issue, whether the President has the authority to detain citizens who qualify as enemy combatants. (slip op. 8-17). A majority of the Court determined that the Executive had such authority, though the reasons supporting that authority remain contested. Much of it relies on interpretation of prior case law and the principles that can be extracted (and applied) therefrom. For our purposes, it suffices to know that citizens maybe held as enemy combatants. Justice Scalia's vigorous dissent is worth reading as an insight to the ambiguities in judicial interpretation of prior cases, the process of extraction of principles therefrom and the application of those highly contextulaized principles to the dispute before the court.
For purposes of considering the application of process based Rule of Law principles within the American constitutional law framework, the discussion that follows is more relevant (slip op. Part III).
Hamdi argues that he is owed a meaningful and timely hearing and that extra-judicial detention [that] begins and ends with the submission of an affidavit based on third-hand hearsay does not comport with the Fifth and Fourteenth Amendments. Brief for Petitioners 16. The Government counters that any more process than was provided below would be both unworkable and constitutionally intolerable. Brief for Respondents 46. (slip op. 17).The opinion starts from a set of general principles of process rights in the United States respecting writs of habeas corpus. First, the writ remains available to every individual within the United States. Its suspension requires Congressional action, which has only rarely been used. And its core objective is to serve as a "critical check on the Executive, ensuring that it does not detain individuals except in accordance with law." (slip op.18). Because the writ has not been suspended, Hamdi could property petition for a writ of habeas corpus. (Ibid).
The writ of habeas corpus embodies not merely the right to seek to challenge deprivations of individual liberty before a court but also "provide a skeletal outline of the procedures to be afforded a petitioner in federal habeas corpus review." (Ibid). This includes the right to deny the facts on which a deprivation was based and to take evidence by deposition, affidavit or interrogatories. (Ibid). Hamdi, then, would appear to have the right to present and rebut facts and courts retain a power to vary the ways in which this is accomplished. The Government, however, argued that even if this is the case, that the presentation of the Mobbs Declaration completed the requirement of factual development. In effect, the government affidavit, the government asserted, was all the process that Hamdi was due under both the habeas corpus statute and the due process provisions of the federal constitution. The government advanced two reasons to support this position, the first easily rejected by the Supreme Court, the second requiring more complex analysis.
The government first asserted that there was no factual issue subject to review. The Court rejected this assertion for a number of reasons. First, they were unconvinced that the circumstances surrounding Hamdi's seizure were undisputed, especially since Hamdi had not been permitted to dispute them. Second, under the definition of enemy combatant adopted by the plurality, it is not clear that sufficient facts had been alleged to support the detention. "An assertion that one resided in a country in which combat operaitons are taking place is not a concession that one was 'captured in a zone of active combat operations in a foreign theater of war.'" (Ibid slip op, 19).
The Government's second argument merited more careful analysis. The Government asserted the factual factual exploration was unwarranted because its interests in preserving the security of the United States in a theater of war was could not be overcome an individual's habeas corpous rights. (Ibid., 20).
At most, the Government argues, courts should review its determination that a citizen is an enemy combatant under a very deferential 'some evidence' standard. . . . Under this review, a court would assume the accuracy of the Government's articulated basis for Hamdi's detention, as set forth in the Mobbs Declaration, and assess only whether that articulated basis was a legitimate one. (Ibid., 20).
Hamdi, on the other hand, argued that his liberty interest, that is his interest in avoiding arbitrary detention by the Executive, is sufficiently strong enough to justify recourse to "some proceeding before a neutral tribunal to determine whether the Executive's asserted justifications for that detention have basis in fact and warrant in law." (Ibid., 21). The Court agreed that both positions had merit. "And both emphasize the tension that often exists between the autonomy that the Government asserts is necessary in order to pursue effectively a particular goal and the process that a citizen contends he is due before he is deprivedof a constitutional right." (Ibid).
The Court, then, suggested that where strong interests conflicted , basic procedural rights could be protected and the conflict resolved only by balancing the interests of each and fashioning the structure of process that ensure the harmonization of those interests to the extent possible. The balancing standard is articulated in Mathews v. Eldridge, 424 U. S.319 (1976).
Mathews dictates that the process due in any given instance is determined by weighing 'the private interest that will be affected by the official action' against the Government's asserted interest, 'including the function involved' and the burdens the Government would face in providing greater process. 424 U. S., at 335. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of 'the risk of an erroneous deprivation' of the private interest if the process were reduced and the 'probable value, if any, of additional or substitute safeguards.'The Court first weighed Hamdi's liberty interest. (Ibid., slip op. 22-24). This liberty interest is described as the elemental of liberty interests, that of being free from physical detention from one's own government. If liberty is the norm in American society, detention without trial must be understood as a carefully limited exception. (Ibid., 22). This liberty interest is not offset, according to the Court, by the "circumstances of war or the accusation of treasonous behavior" (Ibid., 23) especially where the Court must weigh the risk of erroneous deprivation. This risk of erroneous deprivation is heightened under a circumstance where there is no opportunity to rebut the government's assertions.
Moreover, as critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.(Ibid., 23).The nature of the accusation cannot affect the balancing. And the Court reaffirmed "the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails." (Ibid., 24).
The Court then weighed the government's interest. (Ibid., 24-25). The Court reaffirmed as well the the weight of the government's interest in protecting the security of the United States and its citizens in time of war. "Without doubt, our Constitution recognizes that core strategic matters of warmaking belong in the hands of those who are best positioned and most politically accountable for making them." (Ibid., 24).
But what balance? The Court essentially sought to protect both Hamdi's interest in liberty and the government's interest in security. First, the plurality held that "a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." (Ibid., 26). But the Plurality also was sensitive to the government's interests. Thus the "exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict." (Ibid., 27). First, hearsay could be accepted as the most reliable evidence. Moreover, the tribunal may permit a presumption in favor of the government's evidence as long as Hamdi is provided with a fair opportunity for rebuttal. (Ibid).
A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant. (Ibid).Those deviations from the usual structure of judicial practice may thus preserve the government's interests while ensuring, to the satisfaction of the plurality, that the core protections of due process for Hamdi--notice and an opportunity to be heard before neutral and detached judge at a meaningful time and in a meaningful manner.
In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen's core rights to challenge meaningfully the Government's case and to be heard by an impartial adjudicator. (Ibid., 28-29).Though the details of the decision remain contested--note that the opinion was able to garner the support of less than a majority of the members of the Supreme Court--it remains a useful exposition of the basic ideas and arguments that frame the process elements of rule of law in the United States. At the apex of procedural rule of law in the United is the premise that no deprivation of life, liberty or property by the State or its agents can be undertaken without the protection of a minimal set of process protections. That is, the interests of the state can never be sufficiently strong to obliterate completely the right of an individual to process protections before she is deprived of any interest in her liberty, life or property. On the other hand, the individual is not entitled to the full range of process protections that could be made available by the state--a trial on the merits in a federal or state court subject to the rules of evidence and procedure developed therefor. That is the essence of Matthews as applied in Hamdi; the state can not deprive an individual of the opportunity for meaningful notice and a meaningful opportunity to be heard before it deprives the individual of interest in life, liberty or property. However, the form and quality of the meaning opportunity for notice and hearing will depend on the circumstances, and the circumstances will be highly dependent on a judicial weighing of the relative interests of the state (public policy and objectives) and the individual (erroneous deprivations).
Critical to that analysis are the premises that procedural rights, even constitutionally grounded procedural rights are not absolute. The rights must be understood in context and may be applied differently depending on the weight of alternative rights against which it is deployed. Though Hamdi raises the question in the context of war, the same analysis applies in any number of other context--e.g., procedures required for student suspensions from public schools. the role of courts are central--they play a mediating role between the rights of the state and those of individuals. That mediating role permits the development of contextual applications of procedural rights in ways that preserve the basic principles of process rule of law in a flexible way that tends to satisfy the parties sufficiently that systemic integrity is preserved. The government may be bound by its own law and must conform to legality, but that legality is constrained by principle sof higher law that may be applied against the state.