University of Georgia School of Law Digital Commons @ Georgia Law Scholarly Works Faculty Scholarship 2018 Due Process of War Nathan Chapman University of Georgia, [email protected] Follow this and additional works at: https://digitalcommons.law.uga.edu/fac_artchop Part of the Constitutional Law Commons, Military, War, and Peace Commons, and the National Security Law Commons Repository Citation Nathan Chapman, Due Process of War , 94 Notre Dame L. Rev. 639 (2018), Available at: https://digitalcommons.law.uga.edu/fac_artchop/1310 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ Georgia Law. It has been accepted for inclusion in Scholarly Works by an authorized administrator of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact [email protected]. DUE PROCESS OF WAR Nathan S. Chapman* The application of the Due Process Clause of the Fifth Amendment to the government's deprivation of rights duringwar is one of the most challengingand contested questions of consti- tutional law. The Supreme Court has not provided a consistent or historically informedframe- work for analyzing due process during war. Based on the English background, the text and history of the U.S. Constitution, and early American practice, this Article argues that due process was originally understood to apply to many but not to all deprivations of rights during war. It proposes a framework for analyzing due process during war that accords with this history and suggests useful principlesfor the "war on terrorism." First, all deprivations of rights during war were subject to the law of the land. During a state of war, rights were determined by the law of war, treaty, and statute. The President had no constitutional authority to deprive persons, including enemies, of rights contrary to that law. Second, many deprivations of rights during war were also subject to the Due Process Clause. The courts in England and the United States provided a number of judicial remedies to enforce the law of the land. Americans understood these remedies to be a requirement of due process. Impor- tantly, those courts provided such remedies for many deprivations during war. English and American courts considered habeas petitionsfor enemy noncombatants; considered trespass suits brought against military officers by enemy noncombatantsfor deprivations of liberty and prop- erty; and reviewed the application of military law by courts martial. When such deprivations were within the jurisdiction of a federal court, they were subject to due process of law. Third, many deprivations of rights during war, though subject to the law of the land, were not subject to due process. The deprivation of rights of enemy combatants on a battlefield and the deprivations of rights of civilians by an officer exercisingstatutory authority to enforce martiallaw were subject to the law of the land, but not to due process. © 2018 Nathan S. Chapman. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Associate Professor, University of Georgia School of Law. My thanks to many friends and colleagues who have talked with me about these ideas and read prior drafts: Diane Amann, Kent Barnett, William Baude, Randy Beck, Samuel Bray, Jud Campbell, Harlan Cohen, Bill Dodge, Richard Ekins, John Harrison, Michael McConnell, Zach Price, Usha Rodrigues, and Andrew Woods. Thanks also to those who provided comments at workshops at the Oxford Programme for the Foundations of Law & Constitutional Government, Stanford Constitutional Law Center, University of Kentucky College of Law, University of Georgia School of Law, and Wake Forest University School of Law. NOTRE DAME LAW REVIEW [VOL. 94:2 INTRODUCTION ...................................................... 641 I. CURRENT FRAMEWORKS FOR DUE PROCESS DURING WAR .... 644 A. Doctrinal: The Supreme Court's Ad Hoc Approach ......... 645 B. H istorical............................................. 647 1. The War Powers Exception Framework ........... 647 2. The Reciprocity Framework ...................... 651 II. Two CONCEPTIONS OF DUE PROCESS ........................ 654 A. Distinguishingthe Rule of Law and judicial Procedure Requirements of Chapter 29 of Magna Carta.............. 654 B. Rereading Blackstone on the Law of the Land ............. 656 III. THE ENGLISH BACKGROUND ................................. 659 A. The Law of War as the Law of the Land ................. 659 1. The Law of Nations .............................. 659 2. The Law of W ar ...................... .......... 663 B. The Two Faces of "MartialLaw ....................... 668 C. The JudicialProcedures for Enforcing the Law of the Land During War ........................................... 670 1. H abeas Corpus ................................... 671 2. Prize Cases ....................................... 672 3. Suits Against Officers ............................ 672 IV. THE U.S. CONSTITUrION .................................... 673 A. The American War of Independence ...................... 674 B. Rereading the U.S. Constitution ......................... 677 1. Congress Versus the President .................... 678 2. Congress ......................................... 682 3. The President .................................... 683 4. The Federal Courts .............................. 684 5. Constitutional Limits with Exceptions for War .... 685 a. The Suspension Clause ....................... 685 b. The Third Amendment ...................... 686 6. The Constitution and the Customary Law of N ations ...................... ................... 687 C. The Due Proces Clause ................................ 688 V. EARLY IMPLEMENTATION ...................................... 691 A. The Neutrality Controversy of 1793-94 ................... 691 B. W are v. Hylton ....................................... 693 C. The Alien Acts of 1798 ................................. 696 1. Congressional Debate over the Alien Enemy Act.. 696 2. Debates over the Alien Friends Act ............... 697 3. Habeas Corpus for Enemy Aliens ................. 699 D. Prize Cases .......................................... 701 E. Martial Law in New Orleans ......................... 703 VI, PRINCIPLES FOR THE 'WAR ON TERRORISM".................. 704 CONCLUSION ............................... 4 ................. 707 20181 DUE PROCESS OF WAR INTRODUCTION The application of the Due Process Clause of the Fifth Amendment dur- ing war is one of the most important, challenging, and debated questions in American constitutional law. Unfortunately, the Supreme Court has not pro- vided a consistent or coherent analytical framework. In Hamdi v. Rumsfeld, the Court's most recent case to directly address the issue, a plurality applied the Mathews v. Eldridge balancing test to determine the "process of law" that was "due" to a U.S. citizen detained in the United States as a terrorist.1 In Boumediene v. Bush, the Court held that the privilege of habeas corpus extends to enemy aliens detained as terrorists at a U.S. base in Cuba.2 This ad hoc approach has provided little guidance to the executive or lower courts, and the guidance it has provided is pernicious. Consider the government's approach to targeted killings. When Presi- dent Obama announced that he believed the Due Process Clause applied to the targeting of a U.S. citizen suspected of terrorism,3 the Department of Justice (DOJ) analyzed the constitutional question according to the plural- ity's decision in Hamdi. After concluding that the Due Process Clause may apply to such a killing, the DOJ dutifully applied the Mathews balancing test to conclude that the executive department's internal checks and balances provide the "process of law" to which a target is "due."4 The notion that the Due Process Clause's procedural due process requirement is satisfied without 5 any judicial process threatens to dilute its protection across the board. The scholarly responses to the DOJ's analysis illustrate the lack of con- sensus-or theory, even-about how the Due Process Clause ought to apply during war. Some scholars argued that the Due Process Clause does not apply to the exercise of war powers; others took no position on whether the Clause might apply during war but agreed with the government that it had satisfied whatever the Clause might require. Some argued that the Clause 1 Hamdi v. Rumsfeld, 542 U.S. 507, 509, 529 (2004) (plurality opinion); see Mathews v. Eldridge, 424 U.S. 319, 335 (1976). 2 Boumediene v. Bush, 553 U.S. 723, 771 (2008). 3 President Barack Obama, Remarks by the President at th National Defense Univer- sity (May 23, 2013), https://www.whitehouse.gov/the-press-office/2013/05/23/remarks- president-national-defense-university ("I do not believe it would be constitutional for the government to target and kill any U.S. citizen-with a drone, or with a shotgun-without due process . "). 4 U.S. DEP'T OF JUSTICE, LAWFULNESS OF A LETHAL OPERATION DIREcTED AGAINST A U.S. CITIZEN WHO Is A SENIOR OPERATIONAL LEADER OF AL-QA'IDA OR AN ASSOCIATED FORCE 5 (2011) [hereinafter DOJ WHrrE PAPER] (assuming the Due Process Clause applies); Memorandum from the Office of Legal Counsel, U.S. Dep't of Justice, to Attorney Gen., Applicability of Federal Criminal Laws and the Constitution