Johnson v. Eisentrager Johnson v. Eisentrager (1950)

I. Facts of the case

After V.E. day, German nationals stationed in Nanking allegedly passed on intelligence to the Japanese Empire. They were tried, and twenty- one of them convicted, by a commission for breach of the terms of the German surrender. They returned to Germany to serve prison terms, in the meantime petitioning the D.C. District Court for hearings. The District Court denied its own jurisdiction on the grounds that the petition was without cause for relief. The Appeals Court reversed, remanding the case back to the District Court to adjudge the petition's merits.

II. Legal issue

Procedural protections: Art. III, §2., cl. 3; Am. V; Am. VI

Does a non-resident alien — and an enemy alien at that — get the privileges and immunities of the Constitution, which include access to federal courts?

III. Holding

The majority answers in the negative.

IV. Reasoning for the Court

Justice Jackson, joined by Chief Justice Vinson and Justices Reed, Frankfurter, Clark and Minton

Argument from the development of case law

Case law which — while reflecting increasingly-enlightened attitude towards non-citizens, even enemy non-citizens, in American jurisdiction — does not come close to embracing the lower court's principle that the Constitution's privileges and immunities apply to everyone, everywhere. Jackson writes,

We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.

The lower court even admits this, "reaching" for justifications from dissenting Supreme Court opinions and so-called "fundamentals." (Why Jackson cites the infamous Alien Act of 1798 when his case is so strong is perplexing).

If we should open our courts to foreign nationals tried in foreign jurisdictions in some circumstances, it should not be here

These guys had it coming. Jackson writes,

Another reason for a limited opening of our courts to resident aliens is that among them are many of friendly personal disposition to whom the status of enemy is only one imputed by law. But these prisoners were actual enemies, active in the hostile service of an enemy power. There is no fiction about their enmity. Yet the decision below confers upon them a right to use our courts, free even of the limitation we have imposed upon resident alien enemies, to whom we deny any use of our courts that would hamper our effort or aid the enemy (§II).

Habeas corpus ("though shalt have the body") entails the physical production of petitioners, witnesses, etc. This is a logistical impossibility for the cases of foreign nationals in foreign lands

Giving privileges and immunities to enemy aliens means they will use the legal system against us (if we give enemy partisans hearings, we have to give them guns, too!)

It will give them protections not afforded to US soldiers — Art. V excludes their conduct in war from normal due process protection — and, traditionally, non- citizen aliens in American jurisdiction. (The latter can petition for habeas hearings only so as to deny their enemy alien status, not the other facts of their detention). Further, it does not seem possible to constitutionally try foreigners in foreign jurisdictions.

Distinguishing from Ex parte Quirin and In re Yamashita

The former case arose from proceedings in American jurisdiction — Washington; analogizing to Eisentrager is "clearly mistaken" (ibid.). The latter, from a Japanese general's petition protesting detention for crimes in American territory — the Philippines. Clear constitutional (holistic reading of Art. 1, §8) and statutory basis for establishing military commissions, at odds with the petition's claims

V. Concurrences and Dissents

Justice Black, joined by Justices Douglas and Burton, dissenting

This case it about federalism — the Judicial supremacy over the conduct of the Executive — not whether the Bill of Rights applies to everyone everywhere

The substance of the petition — whether the Germans had "cause" — is irrelevant to whether or not the District Court could jurisdictionally hear them

Results of the military proceedings seem suspect; weren't these Germans lawfully fighting with the Japanese Empire and not the Third Reich?

Despite presidential and public pressure, Quirin nonetheless allowed for enemy alien belligerents to contest their war crimes convictions

That the Court denied the requested writ in this case "in no way detracts from the clear holding that habeas corpus jurisdiction is available even to belligerent aliens convicted by a military tribunal for an offense committed in actual acts of warfare."

If jurisdiction is the controlling variable for adjudication due process rights, then the government can cynically increase conviction odds by "moving" people.

This is the O'Connor plurality's argument against the Scalia dissent in Hamdi.

"We're just advocating habeas corpus — an a limited scope for these hearings, too — and not transplanting the Second Amendment to China"

Black argues that the Judiciary is the only possible "final arbiter" of tried nationals in the countries we occupy. "Conquest by the United States ... does not mean tyranny." (I too was amused by Jackson's biblical reference. All Paul's Roman citizenship afforded him, IIRC, was a beheading rather a crucifixion, which was non-citizen Peter's fate).

VI. Significance

Eisentrager, nominally, is good law today. In Rasul v. Bush (2004), Stevens distinguishes the facts of the case (namely, federal statutes, which he argues does provided no relief to the Germans stuck in China) to arrive at a result opposite of Eisentrager's (BLBAS 868).