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After Abu Ghraib, a whole bunch of fits and starts with military commissions, not to mention too loudly the disastrously wrong-headed, deadly, and costly occupation of Iraq, Boumediene will make perfect sense to most of the world that will be mercifully saved from reading the opinion.
The decision in Boumediene will no doubt be heralded as a victory for civil liberty and a further rejection of the foreign policy, including the conduct of the "war on terror," (if you believe there is such a war) of George W. Bush. The court, of course, did not repudiate either the president or his foreign policy in so many words, but that's what the opinion effectively does—that, and express the view that since we're not sure we're at war, holding people without formal charge or trial who may or may not be associated with the war we're not sure we're fighting for more than six years is not good.
Spurning the president's foreign policy is now commonplace. It is being done every day in offices, schools, and homes across the country; there's no reason the court can't get into the act, too. So, despite its soaring rhetoric that "security subsists in fidelity to freedom's first principles," the opinion might be summarized as: Our security was breached on 9/11; we are unsure of the scope of the continuing threat, but we're feeling safe now. Because that is the case, Guantanamo will be treated as functionally part of the United States, and alien detainees who are within it will be given access to the federal district courts by means of the writ of habeas corpus. It is just not proper to keep noncitizens in custody for six years with no regular, Article III judicial determination that we caught the real enemy.
Putting aside the disregard of precedent, the fact that the history of extending the writ beyond sovereign territory was at best a draw, and that once again the high court left it up to the district courts to figure out what now, it's a fine opinion. It is too facile to say the only losers are the detainees who have the writ but no real certainty that it means much of anything in particular. I bet more than a few petitions for release will be forthcoming with or without great specification of procedure. The chief justice's dissent admirably illustrates the empty suit character of the majority. I'm not prepared to join Justice Scalia's anticipation of military doom, though this much is true: The opinion disregards the wisdom of Justice Jackson, not in leaving an opinion lying around like a "loaded weapon" but by discharging and leaving a mess of anything that used to make sense in the jurisprudence of warfare and foreign affairs.
Next time, issue a press release. They are shorter and easier to read.
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A sign of what's to come?
Here's the president's statement in response to Boumediene, courtesy of CNN:
President Bush, who is traveling in Europe, said he disagreed with the Guantanamo ruling but promised to abide by it.
"Congress and the administration worked very carefully on a piece of legislation that set the appropriate procedures in place as to how to deal with the detainees," he said. "We'll study this opinion, and we'll do so with this in mind to determine whether or not additional legislation might be appropriate so that we can safely say, truly say to the American people. 'We are doing everything we can to protect you.' "
Notice the president focuses on deciding whether there needs to be a legislative response to ensure "we are doing everything we can to protect you" rather than to correct the procedural deficiencies in the current legislation that led the court to conclude that it failed to provide the habeas right the Constitution guarantees in the absence of a valid suspension. In other words, it does not sound like the legislation he has in mind would be what we ordinarily think of as a legislative "fix."
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The second question presented by the Boumediene petitioners was the substantive question—one that the trial judges will now consider on habeas—of who, exactly, the president is authorized to indefinitely detain in the conflict against al-Qaida. (I have much more to say about the merits of this question, and its application to the Bosnian Boumediene petitioners, in my posts in this Federalist Society debate.)
Not surprisingly, the court emphasized that it was not resolving that question now. Two sentences in the court's opinion, however, are relevant and (potentially) quite important on this question.
First is this one, on Page 59: "Whether the President has such authority [to detain petitioners indefinitely] turns on whether the AUMF authorizes—and the Constitution permits—the indefinite detention of 'enemy combatants' as the Department of Defense defines that term."
Two things interesting about this. The first is that the court appears to agree with the petitioners that the scope of detention authority is a matter of congressional intent as reflected in the AUMF (which the court in Hamdi properly construed to incorporate the laws of war)—with no mention of any additional constitutional detention authority, as argued by the SG.
Second, and more important, the court very conspicuously indicates that there might be constitutional limits on the power of even the Congress to authorize indefinite detention. That's a very fascinating, and important, suggestion that is sure to be much discussed now that the court has held that the detainees are entitled to at least some constitutional protections.
The second sentence is this one, on Page 68:
The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security.
I am reluctant to read too much into this sentence, which was not included in a discussion about the scope of detention authority. But it does at least hint at the same point that Justice O'Connor made in her plurality opinion in Hamdi, namely, that dangerousness—i.e., actual combatancy or threat of terrorist activity—is the touchstone for indefinite detention, and that perhaps the military lacks the authority, which the Bush administration has asserted and exercised, to indefinitely detain persons either because they have "aided" al-Qaida or affiliated terrorist groups, and/or because of their intelligence value (see discussion here).
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Though the opinion in Munaf and Omar should give us all some pause, I'm still thinking that today's Boumediene opinion comes as close as I've seen the court come to sounding the death knell for broad judicial deference to the executive on matters of national security.
The majority opinion doesn't just embrace a functional approach to resolving questions of the scope of the Constitution's applicability abroad. (When constitutional lawyers talk about functional approaches, they generally mean something that takes into account the practical effects of a particular outcome in resolving questions of constitutional power). In announcing the practical considerations that matter, Justice Kennedy's opinion gives executive claims of security necessity (that is, the executive's view of what's practical) at Guantanamo the back of his judicial hand.
What does matter in determining whether the Constitution (here, the Suspension Clause) constrains U.S. actions outside the territorial United States? Kennedy says three things: 1) citizenship and status of detainee; 2) the nature of the site of the detainee's apprehension and detention; and (3) practical obstacles inherent in resolving entitlement to writ. What about the practical obstacle the administration's been touting all along—that full habeas hearings with consideration of all evidence and so forth would compromise U.S. national security? According to Kennedy: "The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees' claims." Ouch.
Marty's right that today's decision leaves open the critical next question of what about the habeas petitioners today held at the United States base in Bagram, Afghanistan. But that's a pretty strong shot across the bow of the executive branch all the same.
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In holding that the reach of the Constitution is to be measured functionally, not formally, a majority in
Boumediene resolves a question previously muddled by plurality opinions.
Whether U.S. agents must adhere to the U.S. Constitution when acting outside U.S. territory is a question various courts have answered in different ways. As I'd outlined
here when
Rasul was pending (Pages 295-99), a line of splintered decisions that I've called "maximalist" indicated that the Constitution always constrained agents abroad. A "minimalist" line indicated the opposite, and neither expressly overruled the other.
A close reader of Justice Anthony M. Kennedy's concurrence in one of the latter cases,
United States v. Verdugo-Urquidez (1990), might have expected that when give the chance, he would reconcile the two lines with a midway approach; that is, by taking the lead of Justice John Marshall Harlan in
Reid v. Covert (1956) (concurrence) and hold that whether the Constitution applied in a particular extraterritorial instance required careful reviews of all the circumstances.
And today, that is exactly what Kennedy did as he wrote for the court that "practical considerations" compelled extension of the constitutional privilege of habeas corpus to noncitizens detainees held at Guantanamo.
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As I noted in my previous post, the two most important questions the court did not answer are:
1) Would habeas rights extend to alien detainees held in foreign locations other than Guantanamo (such as Bagram)?
and
2) What is the substantive standard for who may be indefinitely detained?
The court was not, however, completely silent on these questions; it provided hints about how they might be resolved. In this post and the next, I'll try to identify those hints. Please note: I am not suggesting that the court issued any holdings or that the hints are determinative of how the court will ultimately resolve the questions. They're merely tea leaves, albeit very carefully considered tea leaves that government officials, lower court judges, lawyers, and presidential candidates would be advised to parse carefully.
So, as for the first question: Would habeas rights extend to alien detainees held in foreign locations other than Guantanamo? That is to say, can the military avoid the impact of Boumediene simply by detaining or transferring all alleged alien enemy combatants to a different facility, such as at Bagram?
Short answer: No.
But that doesn't mean that habeas will be available wherever and whenever the military detains alleged combatants.
It will not be available, for instance, in the first few days or weeks of detention at a facility close to a field of battle or in "an active theater of war." The military must be given deference to utilize "reasonable screening and initial detention," even if only "under lawful and proper conditions of confinement and treatment and "for a reasonable period of time."
More broadly, the court suggests that habeas rights will be circumscribed, perhaps even denied, if and where the government demonstrates that such proceedings would "divert the attention of military personnel from other pressing tasks," or where the government presents "credible" arguments that the proceedings would "compromise[]" a "military mission." Moreover, the court suggests that habeas rights would be more limited or dubious where adjudicating the petition "would cause friction with the host government."
In all of these cases, Justice Kennedy emphasizes, a "relevant consideration in determining courts' role" is "whether there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power." Where there are no such adequate alternative protections against arbitrary governmental power, habeas rights will not be denied simply because of the foreign location: "[C]ivilian courts and the Armed Forces," after all, "have functioned along side each other at various points in our history."
Most importantly, the court strongly implies that if, as in this case, the government chooses a foreign detention facility for the very purpose of avoiding judicial review (or perhaps even if the military retains a prisoner at a battlefield locale for the same reason), the court will not look kindly upon such efforts. As I noted below, I believe the single most important sentence in the opinion might be this one:
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David, you're right: Kennedy's opinion in Boumediene calls Congress out. Hey, you want to suspend habeas, go ahead, but we're not going to let you back into it by mumbling about jurisdiction-stripping. Which makes it striking that in the opening of his dissent, Chief Justice Roberts attacks by asserting that "this decision is not really about the detainees at all, but about control of fedreal policy regarding enemy combatants." This is the classic accusation that the court is overstepping itself in a spat among the branches. And yet in his opinion, Kennedy keeps the court on a pretty narrow path, defining the right of habeas corpus (much weighty historical analysis on this front) and explaining why, because of its constitutional significance, Congress can't wish away habeas with a lot of indirection.
Roberts is right that the big question is what happens next. But what he calls "a set of shapeless procedures to be defined by federal courts at some future date" is the Supreme Court sending this case back to the lower courts to fill in the contours of exactly the sort of due process to which the detainees are entitled. That's standard operating procedure—if the majority had filled in all the blanks itself, wouldn't the dissenters have accused them of overreaching? And Kennedy offers pretty specific guidance. He wants a habeas or habeaslike process that has "the means to correct errors" in the initial procedure, in this case, the Combatant Status Review Tribunal. And he wants the detainees to be able to offer their own "relevant exculpatory evidence." The shortcoming of the CSRT is the "considerable risk of error in the tribunal's finding of fact," that's what habeas is designed to protect against, and since we're holding these detainees over the long haul (yes, six years already, as Deborah points out), they're entitled to that protection, too.
What about Marty's key question: Should Congress respond now to the court? I'm curious about others' reactions, especially Ben's, since this cuts close to his book. My own initial reaction is that the decision today is evidence that the courts are doing their best to sort through the incredibly difficult dilemma that the Guantanamo detentions pose. I know we've waited six years already, but I'm willing to wait more to see what they come up with. On the other hand, we're nowhere near the cliff's edge of deciding whether any of these guys should or could be released. And given how dicey that question is, legislative involvement would help the court a lot, politically speaking. That is, if we could ever trust Congress to get it right.
One more question: How does this decision play out in the presidential campaign? Does it give McCain fodder and make Obama defensive? Or can the Democrats figure out a way to harness it ito the deep misgivings about Guantanamo that by now are widely shared?
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While there's much, much more to be said on the Supreme Court's blockbuster decision today in Boumediene, the not-quite-companion case involving U.S. citizens held by the Americans in Iraq also came down today—and the news there is hardly pro-detainee.
In a unanimous decision, the court ruled that while the U.S. federal courts have jurisdiction to hear the habeas petitions of Munaf and Omar (the U.S. citizen detainees), Munaf and Omar would lose on the merits of their habeas claims—and there's therefore no justification for blocking their transfer to the Iraqi authorities for criminal prosecution.
The detainees' key claim was that they were likely to face torture if transferred to the Iraqis for prosecution. The court concludes that this claim is "of concern," but that it is primarily up to Congress and the executive to determine how to handle it. Since the State Department has determined here that the Iraqi detention facilities are good enough, the court decides it is in no position to challenge that determination.
Souter, Ginsburg, and Breyer concur separately in an attempt to limit the scope of the decision—emphasizing that the court is reserving judgment on whether the outcome would be the same in the "extreme case in which the Executive has determined that a detainee [in U.S. custody] is likely to be tortured but decides to transfer him anyway." But given the briefing the court had before it in this case, including this amicus brief detailing all the reasons why torture was likely in this case, it's a little hard to imagine just what kind of exceptional circumstances they have in mind. Among other things, the same State Department had said in its most recent country report that Iraqi jails have "significant human rights problems," including "torture and other cruel, inhuman, or degrading punishment" and "[a]busive interrogation practices" including "rape, torture and abuse, sometimes leading to death."
I'm not sure which is more remarkable about the decision—the fact that it was unanimous or the fact that the court decided to reach the merits of the habeas claims that the men were being held in violation of their rights under U.S. law. I'll say it was the decision to reach out and decide the merits—of a piece, one might note, with Justice Kennedy's paean to the role of the federal courts in such matters in Boumediene itself: "Because our Nation's past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury." Read: We've been holding back. We're no longer so inclined.
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There’s much fulminating in the dissents about the court usurping the judgment of the political branches, accompanied with the contention (particularly forcefully asserted in Scalia's dissent) that the court’s recognition of habeas rights creates a grave security threat to the nation. But it’s worth recalling one basic fact about this whole litigation: The government of the United States (neither the president nor the Congress) has never argued that the writ of habeas corpus should actually be suspended, something the Constitution permits so long as the constitutional standard for doing so is met. As the Constitution says, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Instead, the government has argued only that habeas does not apply to these detainees because of who and where they are and that, even if habeas does apply, the current statutes provide an adequate substitute for it. The court, of course, has now rejected both of those arguments. But if, in the view of the political branches, the public safety really precludes the modest increment of additional process that constitutional habeas now requires in the eyes of the court, nothing prevents the political branches from arguing that the writ should actually be suspended and then passing legislation to suspend it. That the political branches have not to this point seen fit to do so—and that there is not and has not yet been the political support in Congress for such a suspension (putting aside the separate question whether the court would conclude that such a statutory suspension meets the constitutional requirements for suspension)—goes some distance in my view in undermining the contention that the court has somehow usurped the power of the political branches to protect the public safety. All we now know is that the political branches have consistently avoided claiming a power to suspend, concluding instead, wrongly, that habeas did not apply to these detainees and that the newly constructed process for reviewing their detentions would be enough to satsify the constitutional guarantee of habeas.
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The much-anticipated Boumediene decision by the Supreme Court is out—and on first, very quick read looks like a large victory for the Guantanamo detainees. Among other things, the court seems to conclude full habeas corpus hearings in the federal district court should proceed without delay. Here's one key excerpt (and more enlightened discussion no doubt to follow).
The Government argues petitioners must seek review of their CSRT determinations in the Court of Appeals before they can proceed with their habeas corpus actions in the District Court. As noted earlier, in other contexts and for prudential reasons this Court has required exhaustion of alternative remedies before a prisoner can seek federal habeas relief. ... The cases before us, however, do not involve detainees who have been held for a short period of time. ... Were that the case, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. These qualifications no longer pertain here. In some of these cases six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. And there has been no showing that the Executive faces such onerous burdens that it cannot respond to habeas corpus actions. To require these detainees to complete [MCA] review before proceeding with their habeas corpus actions would be to require additional months, if not years, of delay. The first [MCA] review applications were filed over a year ago, but no decisions on the merits have been issued. While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.
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The Court held 5-4, in an opinion by Justice Kennedy, that the petitioners at Gitmo have a constitutional right to petition for habeas corpus and that the DTA/MCA process of D.C. Circuit review from CSRT decisions is not an adequate alternative to habeas. Thus, the petitioners will be able to have habeas petitions considered in district court.
That's very, very big news. But as far as I can tell just yet, the court did not reach the two even more important questions:
1. Whether the Constitution applies to detainees held outside Gitmo; and
2. What the substantive standard for detention is: "It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined."
At first glance, it would appear that although the decision is momentous, there are other important things that it does not do:
It does not speak to whether Gitmo should be closed (although it basically undermines the administration's principal reason for using Gitmo in the first place, which was to keep the courts from reviewing the legality of the executive's conduct).
Nor does it affect, in any dramatic sense, possible military commission trials—with the important exception that it invites the defendants in those trials to raise constitutional defenses, such as under the Ex Post Facto Clause.
Moreover, as I wrote here last week:
"I do not see any serious impetus for congressional action before the election. Why?
Well, for one thing, the Court's decision will almost certainly not affect the MCA military commissions themselves—the trials of a small percentage of the GTMO detainees for alleged war crimes violations—and therefore there will be no call for a new 'special court' process to replace the commissions. ([Because the Court holds that the Constitution applies at GTMO, that might enhance some of the defendants' specific claims and defenses in those trials, such as under the Ex Post Facto Clause (the argument that the conduct they are alleged to have engaged in was not a crime at the time of its commission)—but that would not in and of itself call into question the very existence of the commissions or precipitate an overhaul of the commission process.)
What about a new detention statute, not for those detainees to be tried for violations of the laws of war, but for the vast majority of detainees being held indefinitely as 'enemy combatants'? Well, [because] the Court holds that such detainees are entitled to habeas, and that the D.C. Circuit scheme is not an adequate substitute, then any new replacement regime Congress might legislate would have to effectively recapitulate the protections of habeas—and why should Congress bother with that, once habeas proceedings have commenced?"
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This just in via SCOTUSblog—the Supreme Court decided today in a 5-4 opinion that detainees at Guantanamo Bay could bring petitions for habeas corpus in federal district court. As Jeff Toobin just said on CNN, this marks the third time (more if you count each individual opinion) that the Supreme Court has taken the Bush administration to the woodshed over its detention and interrogation regime. More analysis to follow ...