Bourmoudienne

I've been re-reading Bourmoudienne v. Bush, the case in which the Supreme Court held last term that the writ of habeas corpus ran, in some sense, to Guantanomo. It's an important case, of course, but setting all that aside, it's a deeply compelling mix of history and law.

It's becoming clearer to me on my re-reading, though, that the history on which the Court relies is all rather muddled. It feels wrong, to someone familiar with the early modern era. Of course, to some extent that's because it was probably drafted by someone not terribly interested and based on obviously outdated textbooks, which couldn't possibly be the state of the art understanding of the relevant history. On page 11 of the slip opinion, for example, the Court cites a well known but ludicrously general "History of England and the British Empire", originally published in 1937 for the history of Charles I and the 1627 Petition of Right. I'm pretty sure that the current state of thought on that episode is something a little more sophisticated than "the King soon began to abuse his authority again, and Parliament was dissolved".

The stilted history particularly struck me in the Court's various answers to the Government's claim that because the writ didn't run to either Hanover or Scotland, it shouldn't run to Cuba. As the Court described the argument,

"The Government argues in turn that Guantanamo is more closely analagous to Scotland and Hanover, territories that were not part of England but nonetheless controlled by the English monarch (in his separate capacities as King of Scotland and Elector of Hanover). "

The court goes on repeatedly to discuss both entities as if they had something in common at the time of the founding, interspersing such oddities as Berwick upon Tweed and Guernsey in the mix. But these places really had nothing in common at all at that time. First, of course, no person was ever King of Scotland and Elector of Hanover at the same time. The Kingdom of Scotland ceased to exist in 1707 with the Act of Union, and the first joint King of Great Britain and Elector of the Holy Roman Empire, George I, took the British crown in 1714. Having conflated the timing, the Court proceeds to explain the English Court's reluctance to issue writs of habeas corpus against imprisonments in both Scotland (and Hanover) as driven by prudential concerns - "Given the English Crown's (an entity which, technically, didn't exist) delicate and complicated relationships with Scotland and Hanover in the 1700's, we cannot disregard the possibility that the common law courts' refusal to issue the writ to these places was motivated not by formal legal constructs but by what we would think of as prudential concerns."

While we probably can't "disregard" that theory, as to Hanover this seems plainly wrong. However one understands the status of Scotland in the late 18th century (and there is debate here - Justice Scalia explains on p. 22 of his dissent), there can be no misunderstanding the position of Hanover, which had literally nothing to do with the English crown, the Scottish Crown, the British crown, or anything else having to do with the British isles. Issuing a writ of habeas corpus in favor of a prisoner in Hanover would be something like having a US court issue a writ of habeas corpus in favor of a prisoner held by German authorities, on the basis that President Bush also happened to be German Chancellor. It's not a matter of prudential self restraint, but of formality - Hanover was deeply, utterly foreign, ruled by a German Duke who also was an Elector of the Holy Roman Empire, bound to the Emperor in some vague and difficul to understand ways, governed by a completely continental legal system. The English Courts would have had about as much luck issuing writs of habeas corpus to Frederick the Great as to the Elector of Hanover.

I realize that this is all very strange to the modern ear, but that's how people of the time thought. They understood the composite state, the personal union, and it would never have occurred to them that some court in a different country might somehow be able to compel the sovereign of some other country, who happened to be the same person for the time being, to do anything much at all.

Does all this undermine the Court's decision? No, not as such, I guess. But I wonder how much of the Court's history would still be standing if some enterprising person were to look deeply into the Court's various uses of European history in the last few years especially.