Anthony J. Colangelo · April 2009
77 GEO. WASH. L. REV. 623 (2009)
This Article interrogates a particular aspect of the Supreme Court’s opinion in Boumediene v. Bush, and, until now, largely unexamined piece of the habeas puzzle: the concept of “de facto sovereignty.” I will examine what it is, explain how the Court used it in Boumediene, and suggest ways in which it may hold a key to unlocking some of the mystery behind whether the Court will find habeas to extend to noncitizens in other situations of extraterritorial detention.
This Article evaluates the Court’s discussion against prior Supreme Court precedent on de facto sovereignty to distinguish, and define, three types of sovereignty at play in Boumediene: (i) de jure sovereignty; (ii) practical sovereignty; and (iii) de facto sovereignty. And the Article offers a reading of Boumediene in which each type of sovereignty means something different both for the opinion, and for future cases addressing the extraterritorial application of the writ. Under the Article’s analysis:
(i) “de jure sovereignty” means “formal” or “technical” sovereignty in the sense of formal recognition of sovereignty by the government vis-à-vis other governments, and is a political question immune from judicial inquiry. We will be able to put this type of sovereignty aside fairly quickly in our search for answers about the geographic scope of habeas since the Court made clear that the writ’s availability does not turn on it. The analysis becomes more complicated, however, with respect to the other two types of sovereignty.
(ii) “practical sovereignty” means practical control over a territory and is not a political question, but is instead fully the subject of judicial inquiry.
(iii) “de facto sovereignty” means both practical control and jurisdiction over a territory, such that the de facto sovereign’s laws and legal system govern the territory. Like de jure sovereignty, de facto sovereignty is a type of political question. However, while the Court may not answer the political question of de facto sovereignty all on its own, it may look to political branch determinations establishing jurisdiction and control over a territory to conclude that de facto sovereignty exists.
In a sense, the concept of de facto sovereignty I advance for Boumediene strikes a middle path between a full-blown political question into which the Court cannot inquire at all (de jure sovereignty), and a question fully open to judicial inquiry (practical sovereignty). De facto sovereignty is a political question in that it depends upon the political branches for its definition and existence. But while the Court cannot define de facto sovereignty however it likes, it may inquire into whether a territory falls under the recognized definition of de facto sovereignty; that is, whether the United States exercises complete jurisdiction and control over the territory. To do so, the Court must rely on political branch action establishing not just raw control but also jurisdiction, such that U.S. law and the U.S. legal system govern the territory. It is here that the Court takes notice of political branch determinations since they establish such jurisdiction: whether through treaty, legislation, or other mechanism—like a lease. In sum, the existence of de facto sovereignty depends upon the political branches establishing complete jurisdiction and control over a territory; but once the political branches decide to do that, their decision triggers judicially enforceable legal consequences for the scope of habeas under the Constitution.
The Article proceeds as follows. Part I explains the government’s political question challenge to extending habeas to noncitizens at Guantanamo and breaks down the enigmatic concurrent sovereignty analysis devised by the Court to address that challenge. It then identifies wrinkles in the Court’s analysis; namely, that “de facto sovereignty” is a type of political question and that it differs from the Court’s notion of “practical sovereignty.” Part II consults Founding views and longstanding Supreme Court precedent to demonstrate that de facto sovereignty has been considered a political question throughout our constitutional history, and that it means not only practical control but also the exercise of territorial jurisdiction. Part III demonstrates that the Court in Boumediene actually relied more on this jurisdiction aspect than practical control in its discussion of common law history and precedent in order to cast Guantanamo as a place where habeas constitutionally runs.
Part IV looks beyond Boumediene to evaluate other possible locations involving extraterritorial detention of noncitizens under a de facto sovereignty approach; in particular, Afghanistan and Iraq. It discusses U.S. jurisdiction over those locations under Status of Forces Agreements (“SOFAs”) and concludes that in neither location does the United States maintain territorial jurisdiction necessary to establish de facto sovereignty, at least as that concept traditionally has been understood. Thus, if the Court uses a de facto sovereignty approach incorporating jurisdiction going forward, habeas likely will not extend to noncitizen government-designated enemy combatants in those places.
Finally, Part V offers concluding thoughts on whether a de facto sovereignty approach is normatively superior to the Court’s practical sovereignty notion as a measure for the constitutional scope of noncitizen habeas rights abroad in the war on terror. It initially notes that a de facto sovereignty approach is probably more predictable than a practical sovereignty approach. It then addresses a separation of powers tension inherent in using de facto sovereignty as a guide in the habeas context. Here I articulate a “middle path” for de facto sovereignty in the habeas context between a full-blown political question and a question fully open to judicial review. The path is founded on a principled distinction from de facto sovereignty precedent and proposes a more nuanced analysis than modern accounts of the political question doctrine as a binary choice between full judicial review and full deference to the political branches. I argue that while full deference to the political branches on de facto sovereignty questions makes sense in the contexts presented by precedent—recognition of foreign sovereigns—it does not in the habeas context, which involves protection of individual rights against government. The middle path accordingly seeks to balance judicial- and political-branch competences under the Constitution in the new context of habeas rights in the war on terror. It does so by predicating the existence of de facto sovereignty directly on political branch determinations: the establishment of not just control but also territorial jurisdiction, which occurs through political branch mechanisms. But once the political branches establish such control and jurisdiction, the Court may take notice of it and, hence, of U.S. de facto sovereignty. I suggest that the Court’s treatment of the political question doctrine in the field of foreign relations in Baker v. Carr, the reigning Supreme Court statement on the doctrine, can be read to leave room for just this type of approach.
