For blog readers who slogged through my brief discussion of the Military Commission Act, I should underscore that the post isn’t designed to take a position, but rather to give a necessarily very incomplete overview of the lay of relevant cases–although I am, as an initial matter, intuitively sympathetic to claims that due process requires an Article III court’s independent, do novo factual determination of citizenship status before alleged alien combatants held in Guantanamo are tried in military commissions.
One reason I hesitate to take a position is because the legal questions are deeply underarticulated in the cases and, frankly, in the Constitution itself. One of the most under-articulated questions, aside from the scope of “constitutional habeas” and the extent of the suspension power, is where, and to whom, the Constitution–particularly the Bill of Rights–applies.
Here’s what I’m reading right now as I think about the question. I welcome suggestions of other articles:
1. Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1 (2002). This is a terrifically informative article that surveys (critically) the development of territoriality and citizenship limitations on the Constitution in cases ranging across the Indian Wars, the nineteenth century wars of colonial expansion, and the conflict over Mormonism and polygamy in the Utah Territory. A great place to get one’s bearings in a sea of very exotic constitutional history.
2. Gary Lawson, Territorial Government and the Limits of Formalism, 78 Calif. L. Rev. 853 (1990). Here, Lawson argues, in his typically careful but ambitious fashion, that the proper “formalist vision of a constitutional territorial regime is vastly different from the regime that has been in place for the past two hundred years.”
3. Gary Lawson & Guy Seidman, The Hobbesian Constitution: Governing without Authority, 95 Nw. U.L. Rev. 581 (2001). Here Lawson and Seidman examine the period of military government in California after the Mexican-American war, through the prism of the largely forgotten case (Cross v. Harrison), tracing, along the way, some of the “troubling” consequences of the Court’s disposition of that case “in subsequent legal and political events, most notably the … Insular Cases,” which loom in the background of the debate over the detainees held in Guantanamo.