The ties that bind: The constitution, structural restraints, and government action overseas

Georgetown Law Journal

Volumn 96, Issue 1, 2007, Pages 237-271

  Hayden, Jessica Powley ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 37149042803     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (268)

1. Boumediene v. Bush, 476 F.3d 981, 991, 994 (D.C. Cir. 2007)
2. cert. granted, 127 S. Ct. 3078 (June 29, 2007) (No. 06-1195).
3. Id. at 991.
4. Id. at 994-99 (Rogers, J., dissenting).
5. 339 U.S. 763 (1950).
6. 494 U.S. 259 (1990).
7. Verdugo-Urquidez, 494 U.S. at 269;
8. Eisentrager, 339 U.S. at 783.
9. Boumediene, 476 F.3d at 991-92.
10. Verdugo-Urquidez, 494 U.S. at 265 (noting that "the people" refers "to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community").
11. Boumediene, 376 F.3d at 995.
12. This issue will be of central importance in Boumediene's appeal to the Supreme Court. One of the issues upon which the Court granted certiorari is "[w]hether aliens detained as enemy combatants at Guantanamo Bay have rights under the Suspension Clause of Article I, Section 9, of the Constitution." See Boumediene v. Bush, 127 S. Ct 3078 (2007) (granting certiorari).
13. The petitioners argue that the Suspension Clause should bind the government at Guantanamo Bay. See Petition for Writ of Certiorari at 23-25, Boumediene, 127 S. Ct 3078 (No. 06-1195).
14. Other Guantanamo detainees have made similar arguments, focusing on the structural nature of the Suspension Clause. See, e.g., Petition for Writ of Certiorari at 19, Hamdan v. Gates, 127 S. Ct. 1507 (2007) (No. 06-1169) [hereinafter Petition for Writ of Certiorari] ("Like other structural protections, the Suspension Clause is not limited to a particular class of individuals, but rather constrains the power of Congress to act").
15. In this context, I refer to the Second Amendmend as an individual right in contrast to a structural restraint. The question of whether the Second Amendment is an individual right or a collective right is widely disputed. See, e.g., Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989).
16. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2772-75 (2006);
17. see also Petition for Writ of Certiorari, supra note 10, at 19 ("Implicit in [Hamdan] was the principle that a Guantanamo detainee can invoke constitutional restraints-in that case, separation of powers-to contest government action.").
18. See, e.g., LOUIS HENKIN, CONSTITUTIONALISM, DEMOCRACY AND FOREIGN AFFAIRS 99-100 (1990) (arguing that the framers intended the Bill of Rights to embody a "universal human rights ideology");
19. Louis Henkin, The Constitution as Compact and as Conscience: Individual Rights Abroad and at Our Gates, 27 WM. & MARY L. REV. 11 (1985);
20. Gerald L. Neuman, Whose Constitution?, 100 YALE L.J. 909 (1991);
21. Kermit Roosevelt III, Guantanamo and the Conflict of Laws: Rasul and Beyond, 153 U. PA. L. REV. 2017 (2005).
22. But see J. Andrew Kent, A Textual and Historical Case Against a Global Constitution, 95 GEO. L.J. 463 (2007) (arguing that although the Constitution has no application beyond our borders, treaties and congressional legislative action fill in the gap).
23. See Downes v. Bidwell, 182 U.S. 244, 277 (1901).
24. See supra note 11.
25. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 2-1 to -4, at 118-36 (3d ed. 2000) (discussing the relationship between the structure of the Constitution and substantive rights);
26. Carl H. Esbeck, The Establishment Clause as a Structural Restraint on Governmental Power, 84 IOWA L. REV. 1, 2-3 (1998) (distinguishing between constitutional structural restraints and individual liberties).
27. Esbeck, supra note 16, at 3.
28. Id. at 2-3.
29. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1132 (1991);
30. see also Clinton v. City of New York, 524 U.S. 417, 450-53 (1998) (Kennedy, J., concurring) (noting that the structure of the Constitution itself advances liberty by separating powers).
31. United States v. Balsys, 524 U.S. 666, 674-75 (1998) (Black, J., concurring) (emphasis omitted) (citing New York Times Co. v. United States, 403 U.S. 713, 716 (1971)).
32. Esbeck, supra note 16, at 3.
33. See, e.g., Baron v. Baltimore, 32 U.S. (7 Pet) 243, 250-51 (1833) (holding the Bill of Rights inapphcable to the states);
34. see also STEVEN D. SMITH, FOREORDAINED FAILURE 22 (1995).
35. Esbeck, supra note 16, at 3.
36. SMITH, supra note 22, at 22.
37. See Amar, supra note 19, at 1136;
38. Esbeck, supra note 16, at 25;
39. Mary Ann Glendon & Raul F. Yanes, Structural Free Exercise, 90 MICH. L. REV. 477, 477-78 (1991).
40. Amar, supra note 19, at 1136.
41. Id. at 1136-37.
42. A related problem derives from the way we as law students and scholars study the Bill of Rights. As Professor Amar points out, constitutional scholars tend to examine the text in discrete and insular chunks. Scholars will examine specifically the history and the aims of the Fifth Amendment or the Eighth Amendment, but not consider the Bill of Rights as a whole. This oversight has led to a doctrine that deemphasizes structure instead of employing it. See id. at 1131.
43. Likewise, individual rights flow from the restraints on the government. See Printz v. United States, 521 U.S. 898, 921-22 (1997) (discussing how individual liberty flows from the Constitution's structure).
44. U.S. CONST. amend. I. The last clause, like the Fourth Amendment, speaks in terms of rights held directly by the people and should be interpreted as an individual right.
45. U.S. CONST. amend. IV.
46. 494 U.S. 259 (1990).
47. Id. at 265 (citing United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (stating that an alien is not entitled to First Amendment rights, because "[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law")).
48. See infra text accompanying notes 213-216.
49. Esbeck, supra note 16, at 2;
50. see also Clinton v. City of New York, 524 U.S. 417, 451-52 (1998) (stating that structural clauses cannot be voluntarily surrendered or abdicated by Congress);
51. Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982) (noting that because personal jurisdiction is an individual right, it can be waived).
52. See supra notes 29-30 and accompanying text.
53. For example, as a condition of employment with the CIA, employees sign an agreement to "not... publish ... any information or material relating to the Agency, its activities or intelligence ? activities generally, either during or after the term of [his] employment ... without specific prior approval by the Agency." Snepp v. United States, 444 U.S. 507, 508 (1980) (alteration in original). When a former CIA official published a book without prior prepublication review about his activities in South Vietnam, the CIA moved to enforce the official's employment contract. The official argued that the agreement infringed on his First Amendment right to free speech. The Supreme Court held that the government could impose these restrictions on what would otherwise be a violation of the First Amendment. Id. at 510;
54. cf. Jason Mazzone, The Waiver Paradox, 97 NW. U. L. REV. 801, 801 (2003) (noting that First Amendment rights cannot usually be waived in bargaining with the government, whereas criminal rights such as right to counsel or plea bargains can and noting the paradox between the unconstitutional conditions doctrine and the doctrine of criminal waiver).
55. See, e.g., Ins. Corp. of Ir., 456 U.S. at 702-03 (noting that subject matter jurisdiction is a restraint on sovereignty and therefore cannot be waived, unlike personal jurisdiction).
56. As Erwin Chemerinsky notes, "someone who seeks to prevent a violation of a constitutional provision dealing with the structure of government is unlikely to be accorded standing unless the person has suffered a particular harm distinct from the rest of the population." ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 2.3.2, at 69 (4th ed. 2003).
57. See, e.g., Hast v. Cohen, 392 U.S. 83, 105 (1968).
58. But see Hein v. Freedom from Religion Found., 127 S. Ct 2553 (2007).
59. Flast, 392 U.S. at 85-86, 105.
60. 418 U.S. 166, 167-68, 179-80 (1974). The Accounts Clause requires Congress to publish from time to time the expenditures of the United States. See U.S. CONST. art. I, § 9, cl. 7.
61. Id. at 175, 177.
62. Esbeck, supra note 16, at 6.
63. Ross v. McIntyre, 140 U.S. 453, 464 (1891).
64. Downes v. Bidwell, 182 U.S. 244, 268, 287 (1891). However, there was great disagreement among the Justices as to which rights were fundamental. The Court, for example, held that the Fifth and Sixth Amendments did not apply to territories.
65. See Hawaii v. Mankichi, 190 U.S. 197, 212, 218 (1903).
66. Justice Brown based his decision on the proposition that the right to a jury was not fundamental. Id. at 218.
67. Justice Harlan strongly disagreed. See id. at 226-49 (Harlan, J., dissenting).
68. 354 U.S. 1, 5, 7 (1957) (plurality opinion).
69. Id. at 14.
70. Id. at 5-6 ("At the beginning we reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution.").
71. Id. at 74 (Harlan, J., concurring in the result).
72. Neuman, supra note 13, at 68;
73. see also GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION 109-11 (1996) (describing the various approaches to the extraterritorial reach of the Constitution such as "universalism, " "Hobbism," "global due process," and "mutuality of obligation").
74. Neuman, supra note 13, at 970;
75. see, e.g., Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1505 (D.C. Cir. 1984) (holding citizen could bring due process claim against military for use of property overseas);
76. United States v. Demanett, 629 F.2d 862 (3d Cir. 1980) (U.S.'and Columbian nationals were protected by the Fourth Amendment when searched by the Coast Guard);
77. United States v. Cadena, 585 F.2d 1252, 1262 (5th Cir. 1978) (applicability of Fourth Amendment not limited to U.S. citizens), overruled by United States v. Michelena-Orovio, 719 F.2d 738 (5th Cir. 1983);
78. Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144 (D.D.C 1976) (holding First, Fourth, and Sixth Amendments applicable to U.S. citizens in Germany).
79. 86 F.R.D. 227, 244 (U.S. Ct. Berlin 1979).
80. 494 U.S. 259, 274-75 (1990).
81. See id.
82. Id. at 265-66.
83. Id. at 278 (Kennedy, J., concurring).
84. 542 U.S. 466 (2004).
85. In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 463-64 (D.D.C. 2005).
86. But see Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007),
87. cert, granted, 127 S. Ct. 3078 (U.S. June 29, 2007) (No. 06-1195).
88. In another decision challenging detainee detention at Guantanamo Bay, Judge Randolph (joined by Judge Sentelle) questioned the dichotomy between structure and individual rights as they relate to territory: Why is the dissent so fixated on how to characterize the Suspension Clause? The unstated assumption must be that the reasoning of our decisions and the Supreme Court's in denying constitutional rights to aliens outside the United States would not apply if a constitutional provision could be characterized as protecting something other than a "right." On this theory, for example, aliens outside the United States are entitled to the protection of the Separation of Powers because they have no individual rights under the Separation of Powers. Where the dissent gets this strange idea is a mystery, as is the reasoning behind it. Id. at 994.
89. This "strange idea" is found throughout constitutional law, academic scholarship, and is the focus of this Note. Judge Rogers's dissent in Boumediene explains the differences between individual rights and structural restraints and properly characterizes the law. Id. at 994-98 (Rogers, J., dissenting).
90. See, e.g., Downes v. Bidwell, 182 U.S. 244, 341 (1901) (declaring that constitutional provisions that limited the government's capacity to act applied in Puerto Rico, a U.S. territory, but "foreign to the United States in a domestic sense").
91. See Hamdan v. Rumsfeld, 126 S. Ct 2749 (2006).
92. Petition for Writ of Certiorari, supra note 10, at 19.
93. Hamdan v. Rumsfeld, 126 S. Ct at 2774 n.23 (2006).
94. Downes, 182 U.S. at 249 (quoting U.S. CONST. art. I, § 8, cl. 1).
95. Id. at 276-77.
96. Id. at 277.
97. The Framers explicitly recognized this in at least one respect. In Article II, Section 2, the Constitution provides that the Executive may make treaties "with the advice and consent of the Senate." This restraint on executive power is structural; it does not implicate individual rights but rather manages government power.
98. See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTITUTION 170 (1998) (arguing that the Bill of Rights are "paradigmatically rights of and for American citizens");
99. Kent, supra note 13.
100. This term refers to any theory which purports to apply either the entire Constitution or some portion thereof to aliens overseas. See Kent, supra note 13, at 464.
101. Professor Amar writes that "[peripheral applications of the Bill" such as to "resident aliens ... for reasons of prudence principle or both ... should not obscure its core meaning." AMAR, supra note 67, at 170.
102. See Memorandum for Alberto R. Gonzales, Counsel to the President (Aug. 1, 2002), available at www.washingtonpost.com/wp-srv/nation/ documents/dojintenogationmemo20020801.pdf [hereinafter 2002 Memo].
103. See id. Although this memo has been repealed, there are still concerns about how detainees are being treated in U.S.-controlled facilities, as well as treatment of prisoners sent to foreign-controlled prisons. For a defense of the memo, see John Yoo, A Crucial Look at Torture Law, in CIVIL LIBERTIES VS. NATIONAL SECURITY 321-23 (Katherine B. Darmer et al. eds., 2004).
104. See, e.g., Hudson v. McMillian, 503 U.S. 1, 9 (1992) ("[P]roscribing torture and barbarous punishment was 'the primary concern of the drafters' of the Eighth Amendment....'"
105. (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976));
106. id. at 13-14 (Blackmun, J., concurring in the judgment) ("Indeed, were we to hold to the contrary, we might place various kinds of state-sponsored torture and abuse-of the kind ingeniously designed to cause pain but without a telltale 'significant injury'-entirely beyond the pale of the Constitution.").
107. See, e.g., City of Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983) (holding that failure to provide medical care before the suspect had any form of criminal adjudication was not a violation of the Eighth Amendment);
108. Ingraham v. Wright, 430 U.S. 651 (1977) (holding that punishment by paddling in the school context is outside the ambit of the Eighth Amendment).
109. See, e.g., Casaburro v. Giuliani, 986 F. Supp. 176 (S.D.N.Y. 1997) (holding Eighth Amendment applicable in pre-conviction situations where action constitutes punishment).
110. Although outside the scope of this paper, there is also historical support for the proposition that the Founders intended for the Eighth Amendment to apply to pre-trial interrogations. See Celia Rumann, Tortured History: Finding Our Way Back to the Lost Origins of the Eighth Amendment, 31 PEPP. L. REV. 661, 673-81 (2004) (citing to the Blackstone Commentaries, which equated rack and screw interrogation techniques as punishment, and to the debate during the ratification convention which suggests the Framers believed the Eighth Amendment would apply pre-conviction). Therefore, this Note assumes that the Court would find that indefinite detention without the opportunity for process is within the ambit of " punishment" for the purposes of the Eighth Amendment.
111. U.S. CONST. amend. VIII.
112. See AMAR, supra note 69, at 82.
113. The Eighth Amendment appears to have contemplated restraining both the legislative and judicial branches. See GEORGE ANASTAPLO, THE AMENDMENTS TO THE C ONSTITUTION: A COMMENTARY 88 (1995) ("Legislators as well as judges are addressed by this amendment.");
114. see also United States v. Lopez, 514 U.S. 549, 552 (1995) (discussing the role of structure in "preventing] the accumulation of excessive power in any one branch").
115. See LEONARD W LEVY, ORIGINS OF THE BILL OF RIGHTS 231 (1999).
116. Id. at 234.
117. Id. at 235.
118. Id.
119. See, e.g., AMAR, supra note 69, at 87, 279;
120. WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 372 (Oxford, Clarendon 1765).
121. LEVY, supra note 81, at 234.
122. Id. at 236.
123. See, e.g., id.
124. Id.
125. Id. at 237.
126. Id. at 231.
127. See Part III B infra for an analysis of the jury as a structural restraint.
128. See also AMAR, supra note 69, at 82-83.
129. U S. CONST. amend. V.
130. U.S. CONST. amend. VI.
131. U.S. CONST. amend. VIII.
132. See AMAR, supra note 99, at 87.
133. See id. at 82 (noting the crime of "writing books and pamphlets" was punished by cutting off the convict's ears and "his remaining ear stumps [were] gouged out while he was on a pillory").
134. Adamson v. California, 332 U.S. 46, 70 (1947) (Black, J., dissenting);
135. see also Green v. United States 356 U.S. 165, 209 (1958) (Black, J., dissenting) ("Above all that generation deeply feared and bitterly abhorred the existence of arbitrary, unchecked power in the hands of any government official, particularly when it came to punishing alleged offenses against the state. A great concern for protecting individual liberty from even the possibility of irresponsible official action was one of the momentous forces which led to the Bill of Rights. And the Fifth, Sixth, Seventh and Eighth Amendments were directly and purposefully designed to confine the power of courts and judges, especially with regard to the procedures used for the trial of crimes.").
136. See Adamson, 332 U.S. at 71.
137. Gilmore v. Utah, 429 U.S. 1012, 1018 (1976) (White, J., dissenting).
138. Id. at 1019 (Marshall, J., dissenting).
139. See Whitmore v. Arkansas, 495 U.S. 149,173 (1990) ("A defendant's voluntary submission to a barbaric punishment does not ameliorate the harm that imposing such a punishment causes to our basic societal values and to the integrity of our system of justice.");
140. Lenhard v. Wolff, 444 U.S. 807, 811 (1979) (Marshall, J., dissenting) ("Society's independent stake in enforcement of the Eighth Amendment's prohibition against cruel and unusual punishment cannot be overridden by a defendant's purported waiver.").
141. See Tim Kaine, Comment, Capital Punishment and the Waiver of Sentence Review, 18 HARV. C.R.-C.L. L. REV. 483, 513-14 (1983) (arguing that the Eighth Amendment demands mandatory appellate review in capital punishment cases to protect society's independent interest in preventing the arbitrary infliction of the death penalty);
142. Jeffrey L. Kirchmeier, Let's Make a Deal: Waiving the Eighth Amendment by Selecting a Cruel and Unusual Punishment, 32 CONN. L. REV. 615, 617, 644-45, 651-52 (2000).
143. Nancy Jean King, Priceless Process: Nonnegotiable Features of Criminal Litigation, 47 UCLA L. REV. 113, 173 (1999).
144. Id. at 174
145. Id. at 175-76 (emphasis added) (footnote omitted).
146. See also infra section III.A.3 on normative rationales for a structural interpretation, which picks up on this theme.
147. See Raines v. Byrd, 521 U.S. 811, 818 (1997)
148. (citing Allen v. Wright, 468 U.S. 737, 751 (1984)) (holding that standing requires that plaintiffs allege a cognizable personal injury that can be traced to the defendant's alleged conduct);
149. HEMERINSKY, supra note 39, at 69-70;
150. Esbeck, supra note 16, at 33.
151. See FEC v. Atkins, 524 U.S. 11, 23 (1998) (citing cases that hold that generalized grievances of an abstract and indefinite nature cannot confer standing).
152. For example, with respect to the National Security Agency's warrantless surveillance program, the plaintiffs failed to prove on appeal that they had standing to challenge the program. Although the district court held the plaintiffs had established government action sufficient to "chill" their First Amendment rights, the Sixth Circuit reversed, finding no concrete injury sufficient to confer standing. See ACLU v. NSA, 493 F.3d 644, 665-66, (6th Cir. 2007);
153. see also ACLU v. NSA, 438 F. Supp. 2d 754, 766-71 (E.D. Mich. 2006).
154. Even where Congress statutorily creates a right for citizens to sue, plaintiffs must still meet the Article III injury requirement. See CHEMERINSKY, supra note 39, at 72.
155. AMAR, supra note 69, at 279.
156. Id. at 279-80.
157. See Atkins v. Virginia, 536 U.S. 304, 321 (2002) (holding that the application of the death penalty to mentally challenged defendants is cruel and unusual and remanding the case for a sentence consistent with the opinion).
158. See Roper v. Simmons, 543 U.S. 551, 578-79 (2005) (holding that the application of the death penalty to criminal defendants who committed their crimes before the age of eighteen violates the Eighth and Fourteenth Amendments and affirming the lower court's decision to set aside the sentence of death).
159. See Hope v. Pelzer, 536 U.S. 730, 738 (2002) (holding that handcuffing a prisoner to a hitching post and taunting him is cruel and unusual);
160. Farmer v. Brennan, 511 U.S. 825, 832-34 (1994) (explaining that prison officials can be liable for violations of the Eighth Amendment for acting with "deliberate indifference");
161. Hudson v. McMillian, 503 U.S. 1, 4 (1992) (holding that "use of excessive physical force against a prisoner may constitute cruel and unusual punishment [even] when a prisoner does not suffer serious injury");
162. Estelle v. Gamble, 429 U.S. 97, 103-04 (1976) (holding that a failure to provide medical care is an Eighth Amendment violation).
163. See 429 U.S. at 99-101.
164. The petitioner complained of back and chest pain, as well as black outs. Although medical care was sometimes delayed, he saw medical staff seventeen times. Id.
165. Id. at 104-05, 107.
166. 429 U.S. 1012,1019 (1976) (Marshall, J., dissenting).
167. Trop v. Dulles, 356 U.S. 86, 101 (1958). Interestingly, this very standard highlights the structural nature of the Eighth Amendment. The plurality in Trop wrote:
168. "While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards." Id. at 100.
169. Punishments must be rooted in norms that are created by a representative democracy. 120. Navy general counsel Albert J. Mora has opined: We should care because the issues raised by a policy of cruelty are too fundamental to be left unaddressed, unanswered or ambiguous. We should care because a tolerance of cruelty will corrode our values and our rights and degrade the world in which we live. It will corrupt our heritage, cheapen the valor of the soldiers upon whose past and present sacrifices our freedoms depend, and debase the legacy we will leave to our sons and daughters. We should care because it is intolerable to us that anyone should believe for a second that our nation is tolerant of cruelty. Alberto J. Mora, Editorial, An Affront to American Values, WASH. POST, May 27, 2006, at A25.
170. Andrew Sullivan, The Abolition of Torture, NEW REPUBLIC, Dec. 19, 2005, at 19, available at http://www.tnr.com/docprint.mhtml?i=20051219&s=sullivan121905.
171. But see ALAN DERSHOWITZ, WHY TERRORISM WORKS: UNDERSTANDING THE THREAT, RESPONDING TO THE CHALLENGE 131-64 (2002) (arguing that creating a torture warrant would ensure more liberty and create more accountability than a system without it, in the case of a ticking time bomb scenario).
172. Many note the corrosive effects of torture on those who mete out the punishment. See EDWARD PETERS, TORTURE 187 ("[I]f the victim is conceived to be without human dignity and therefore vulnerable to torture, the torturer also divests himself of human dignity.");
173. Marcy Strauss, Torture, 48 N.YL. SCH. L. REV. 201, 254 (2004) ("The interrogator is corrupted; he learns to treat suspects as objects, as subhuman.");
174. Hendrick Hertzburg, Terror and Torture, NEW YORKER, Mar. 24, 2003, at 29 ("[T]orture is abhorrent not only for what it does to the tortured but for what it makes of the torturer.").
175. And of course, there is the infamous example of the Executioner of Paris. See generally Arthur Isak Applebaum, Professional Detachment: The Executioner of Paris, 109 HARV. L. REV. 458 (1995).
176. See Lincoln Allison, The Utilitarian Ethics of Punishment and Torture, in UTILITARIAN RESPONSE: THE CONTEMPORARY VIABILITY OF UTILITARIAN POLITICAL PHILOSOPHY 9, 24 (Lincoln Allison ed., 1990) (arguing that torture has a corrupting effect on society by affecting norms, rules, and institutions).
177. Mordecai Kremnitzer, The Landau Commission Report: Was the Security Service Subordinated to the Law, or the Law to the Needs of the Security Service?, 23 ISR. L. REV. 216, 264 (1989).
178. Louis Michael Seidman, Torture's Truth, 72 U. CHI. L. REV. 881, 886 (2005).
179. Id.
180. Id.
181. David Garland, Penal Excess and Surplus Meaning: Public Torture Lynchings in Twentieth Century America, 39 LAW & SOC'Y REV. 793 (2005).
182. Id. at 796.
183. Id. at 828 (pointing out that public lynchings, in addition to serving as a form of criminal punishment, also "operated as an occasion for the socially approved expression of racist sentiment and for public displays of racial dominance").
184. See, e.g., Dana Priest, CIA Holds Terror Suspects in Secret Prisons, WASH. POST, Nov. 2, 2005, at Al (discussing secret program that detains terror suspects in secret prisons overseas).
185. The Bush Administration subsequently confirmed the rendition program and transferred the suspects to Guantanamo Bay, where they are currently being held. See Dan Eggen & Dafna Linzer, Secret World of Detainees Grows More Public, WASH. POST, Sept. 7, 2006, at A18.
186. If the government chooses the military paradigm, the "land and naval forces" exception of the Fifth Amendment would apply. In Ex parte Quirin, the Court held that Nazi saboteurs could be tried by military tribunals and that the Fifth Amendment was inapplicable to their trials. 317 U.S. 1, 45 (1942).
187. The court assumed this exception would not apply if the accussed is not, associated with military forces. Id. at 41 (noting "that a trial prosecuted before a military commission created by military authority is not one 'arising in the land ... forces'" when the person on trial is not a member of the armed forces or militia).
188. The Court has answered this in the negative while focusing on the status of the defendant as an alien. See Johnson v. Eisentrager, 339 U.S. 763, 784-85 (1950) (explaining that there is no historical or doctrinal support for the proposition that the Fifth Amendment should be applied to aliens abroad).
189. See supra Part III.A. 1.
190. See AMAR, supra note 69, at 83.
191. Much of the historical research on the jury institution in this section comes from Professor Amar's excellent work in THE BILL OF RIGHTS: CREATION AND RECONSTITUTION (1998)
192. and AMERICA'S CONSTITUTION: A BIOGRAPHY (2005) [hereinafter AMAR, CONSTITUTION].
193. Amar, supra note 19, at 1183;
194. see also George C. Thomas III, When Constitutional Worlds Collide; Resurrecting the Framers' Bill of Rights and Criminal Procedure, 100 MICH. L. REV. 145, 174-80 (2001) (arguing that the Founders were not as concerned with protecting the innocent, but rather focused on the jury as a way to protect the populous from government overreaching).
195. U.S. CONS., amend. V ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ....").
196. U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed....").
197. U.S. CONST. amend. VII ("In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.").
198. 354 U.S. 1, 5, 7 (1957).
199. See supra Introduction.
200. King Henry II ruled England from 1154 to 1189. See LEVY, supra note 81, at 210.
201. Id. at 211.
202. Id. at 212.
203. Id.
204. Id. at 219 (quoting Blackstone).
205. Id. In his Commentaries, Blackstone further elevated the status of trial by jury:
206. "[T]he trial by jury has been, and I trust will be, looked upon as the glory of English law. And it has so great an advantage over others in regulating civil property, how much must that advantage be heightened when it is applied to criminal cases! ... It is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals."
207. BLACKSTONE, supra note 85, at 379;
208. see also Reid v. Covert, 254 U.S. 1, 9-10 (1957) (quoting Blackstone).
209. LEVY, supra note 81, at 219.
210. Id. at 220.
211. Id. (paraphrasing Blackstone's Commentaries).
212. See Thompson v. Utah, 170 U.S. 343, 349-50 (1898) (citation omitted).
213. LEONARD W. LEVY, THE PALLADIUM OF JUSTICE 69 (1999).
214. Id. at 88.
215. THE DECLARATION OF INDEPENDENCE para. 20 (U.S. 1776).
216. Id. para. 11.
217. LEVY, supra note 152, at 88.
218. Cf. Reid v. Covert, 354 U.S. 1, 9 & n.12 (1957)
219. (citing 2 Elliot's Debates (2d ed. 1836)).
220. LEVY, supra note 152, at 93. With some success, Anti-Federalists argued that the absence of a constitutional provision meant that the use of the jury trial in civil cases was being abolished.
221. Id. at 98.
222. THE FEDERALIST NO. 83 (Alexander Hamilton).
223. THE FEDERALIST NO. 83, at 509 (Alexander Hamilton) (Bantam Books 2003).
224. Id.
225. Federalist Farmer No. 15 (Jan. 18, 1788);
226. see LEVY, supra note 152, at 99.
227. See Amar, supra note 19, at 1183. As described by Professor Amar in AMERICA'S CONSTITUTION, "Every state that penned a constitution between 1775 and 1789 featured at least one express affirmation of jury trial, typically celebrating the jury with one or more of the following words: 'ancient,' 'sacred,' 'inviolate,' 'great[],' and 'inestimable.'" AMAR, CONSTITUTION, supra note 135, at 330 (2005).
228. LEVY, supra note 152, at 100-01.
229. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 293-94 (Phillips Bradley ed., Vintage 1945), quoted in AMAR, supra note 69, at 88 (some omissions in original).
230. To be certain, the Court was concerned with the individual rights of citizens. Justice Black famously wrote: "At the beginning we reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights." Reid v. Covert, 354 U.S. 1, 5 (1957) (emphasis added).
231. Id. at 5-6 (emphasis added) (citations omitted).
232. Id. at 10.
233. Patton v. United States, 281 U.S. 276, 298 (1930).
234. There are approximately thirty-five Insular Cases that were decided by the U.S. Supreme Court across the span of two decades, in which the Court grappled with questions of how to govern the territories of Cuba, Puerto Rico, the Philippines, and Guam. See generally BARTHOLOMEW H. SPARROW, THE INSULAR CASES AND THE EMERGENCE OF AMERICAN EMPIRE (2006).
235. The term "Insular Cases" is somewhat imprecise, but refers to the cases decided at the turn of the century establishing a separate constitutional status for aliens outside the United States. See Neuman, supra note 13, at 978.
236. See Dorr v. United States, 195 U.S. 138, 148-149 (1904).
237. 182 U.S. 244, 270-71 (1901).
238. 195 U.S. at 149.
239. Id. at 148.
240. 281 U.S. 276, 293 (1930).
241. Id.
242. See, e.g., Thompson v. Utah, 170 U.S. 343, 353 (1898) (holding that a defendant could not waive a twelve-member jury, granted by statute);
243. Callan v. Wilson, 127 U.S. 540, 549 (1888) (holding that the Sixth Amendment was not "intended to supplant" Article Ill's jury clause).
244. See Patton, 281 U.S. at 298.
245. Id. at 305-06.
246. Id.
247. Amar, supra note 19, at 1196.
248. See id.
249. U.S. CONST. amend. VI.
250. U.S. CONST. art. III, § 2, cl. 3;
251. Amar, supra note 19, at 1196.
252. U.S. CONST, art. III;
253. Amar, supra note 19, at 1196.
254. Amar, supra note 19, at 1198.
255. 170 U.S. 343, 353 (1898).
256. Id. at 354-55.
257. See Patton v. United States, 281 U.S. 276, 296 (1930) (noting that the "constitutional provisions in respect to jury trials in criminal cases are for the protection of the interests of the accused" and may be "waived by the party sought to be benefited"
258. (quoting Dickinson v. United States, 159 F. 801, 821 (1st Cir. 1908) (Aldrich, J., dissenting))). The Court held that no evidence could be produced to show that the trial by jury was regarded as a structural part of government, but rather an individual right for the accused. Id.
259. Amar, supra note 19, at 1186-87.
260. JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 323-24 (1996);
261. see also Kent, supra note 13, at 490.
262. See Duren v. Missouri, 439 U.S. 357, 359 (1979).
263. The Court has held that the accused is entitled to a jury selection process that chooses members of the jury from a fair cross-section of the community. See Taylor v. Louisiana, 419 U.S. 522, 530 (1975).
264. See Holland v. Illinois, 493 U.S. 474,478-79 (1990).
265. Id. at 476-77 (white defendant had standing to challenge the exclusion of African Americans from his jury).
266. Powers v. Ohio, 499 U.S. 400 (1991).
267. A juror will always have standing because the juror herself suffers personal injury when excluded based on race. However, jurors often do not possess sufficient incentive to litigate these claims, and in Powers, the Court explained that criminal defendants may raise these claims as an exception to the prohibition on third-party standing. Id. at 410-15.
268. See, e.g., Mazzone, supra note 37, at 837 (noting arguments the Supreme Court has made in favor of waiver as helping bring about efficient resolutions to criminal suits). According to Fed. R. Crim. P. 23(a), to waive a trial by jury, the defendant must (1) waive the jury trial in writing; (2) have the consent of the government; and (3) obtain the approval of the court.