Having now read (well, skimmed thoroughly) the opinions in
Boumediene v. Bush, here are some of my thoughts:
First, for all of you non-lawyers out there, a short course on the writ of
habeas corpus. This is an action on behalf of a prisoner to question the legality of that prisoner's incarceration. Historically, it has been used to prevent the government from holding an accused without charging him/her with a crime. It is one of the few civil rights that is mentioned specifically in the constitution (as opposed to its amendments), which highlights its importance as a check on arbitrary governmental power.
Secondly, a bit of history. In the
Hamdi v. Rumsfeld (2004), the supreme court (SCOTUS) said that the government had to afford a detainee, captured overseas and imprisoned in Guantanamo, some meaningful due process rights to challenge his detention. In response, the department of defense instituted combatant status review tribunals (CSRTs) to comply with the court's decision in
Hamdi. Subsequently, some detainees brought
habeas corpus actions challenging their detention at Guantanamo. In
Rasul v. Bush (2004), the SCOTUS held that the detainees could bring such actions in federal court.
In response to
Rasul, congress passed the Detainee Treatment Act (DTA), which stripped the federal courts of their jurisdiction to hear
habeas petitions from Guantanamo prisoners. In
Hamdan v. Rumsfeld, however, the SCOTUS said that the DTA didn't cover
habeas petitions that had already been filed before the passage of the act. So congress passed the Military Commissions Act (MCA), which prohibited the federal courts from hearing
any petitions for
habeas corpus involving "enemy combatants" held by the government. Undeterred, the petitioners in
Boumediene brought a
habeas action challenging their detention as enemy combatants.
The government made two arguments: (1) Boumediene and his fellow petitioners couldn't bring
habeas petitions at all, because they were aliens being held at Guantanamo, which isn't American territory; and (2) even if the constitutional guarantees of
habeas corpus applied to Guantanamo, the MCA effectively stripped the federal courts of jurisdiction to hear those petitions. In response, the SCOTUS held: (1) the protections of
habeas corpus applied to Guantanamo; and (2) the MCA operated as an unconstitutional suspension of the writ of
habeas corpus, and so it could not deprive the federal courts of their jurisdiction.
In reaching its decision on the first point, the court reached
waaaay back into its precedents. In particular, the court clarified some of the more obscure points of the
Insular Cases (1901) -- a handful of decisions so obtuse and confusing that they were famously lampooned by
Finley Peter Dunne's Mr. Dooley, who remarked that "no matther whether th' constitution follows th' flag or not, th' supreme coort follows th' iliction returns." The majority opinion said, in effect, that whether constitutional guarantees applied to foreign territory (and everyone, it seems, agreed that Guantanamo was foreign territory) would be decided on a "functional" basis -- i.e. based on the totality of the circumstances. In the majority's opinion, the US maintained such a complete and indefinite control over Guantanamo that prisoners held there were entitled to the constitutional protection of
habeas corpus ("...the United States, by virtue of its complete jurisdiction and control over the base, maintains
de facto sovereignty over this territory"). And since congress never formally suspended the writ of
habeas corpus, Boumediene was entitled to file a petition for the writ.
The next question, then, was whether any federal court could
hear Boumediene's petition. The government argued that the MCA prevented the courts from hearing such petitions, and the district court, which first heard this case, agreed. The SCOTUS, however, reversed that holding. Relying on
Hamdi, the majority ruled that the protections afforded by the DTA and the MCA were not the equivalents of
habeas corpus. Consequently, the provision of the MCA stripping the federal courts of jurisdiction acted as an unconstitutional suspension of the writ of
habeas corpus.
The first part of the majority's opinion, regarding the "extraterritoriality" argument, seems correct -- indeed, the Bush administration's bizarre attempt to create a constitutional "twilight zone" at Guantanamo has never really passed the "straight face test." What's mildly surprising is that the government's position garnered four votes (including Roberts and Alito, who were not on the court at the time of the
Hamdi decision). Scalia (Roberts's opinion doesn't address the extraterritoriality argument) contends that there has never been a rule that enemy combatants on foreign territory enjoyed the right to petition for
habeas relief in time of war. As he states: "the privilege of
habeas corpus does not extend to aliens abroad." Kennedy's point, though, is that Guantanamo isn't really "abroad."
The second part of the majority opinion, addressing the constitutionality of the MCA's jurisdictional provisions, is a bit more confusing. Oddly, neither the majority nor the dissents mentioned
Ex parte McCardle (1868), another case where congress passed a statute limiting the court's jurisdiction in a certain class of
habeas cases. In
McCardle, the SCOTUS meekly obeyed when congress stripped it of jurisdiction, although it held out the possibility that a law might be unconstitutional if it suspended "the whole appellate power" of the courts in cases of
habeas corpus.
Instead of addressing the jurisdictional question head-on, the majority argued that, under the constitution, congress can only suspend the writ of
habeas corpus in certain limited circumstances: i.e. "in Cases of Rebellion or Invasion [when] the public Safety may require it." With the MCA, however, congress didn't suspend the writ, it just attempted to create a process that was an adequate substitute for it (following the court's direction in
Hamdi). But in
Boumediene, the SCOTUS held that congress didn't get it right -- the MCA's protections weren't good enough to stand in for the protections afforded by
habeas corpus. Absent from the majority's opinion, however, is the question of whether the court could even consider that argument, given that the MCA stripped it of its jurisdiction. Interestingly, the plurality in
Hamdan considered the
McCardle precedent with regard to the jurisdictional provisions of the DTA, but said that it was unnecessary to reach that argument at that time. On the other hand, Scalia, in his dissent, explicitly raised
McCardle and its progeny in arguing that the court had no jurisdiction to consider the substantive issues raised in
Hamdan. Why Scalia didn't raise this argument again in
Boumediene is, to me, something of a mystery.
The bottom line: the Bush administration is now 0-for-4 in supreme court decisions regarding the detentions at Guantanamo.
Boumediene will open the doors of the federal courts to all of the detainees, which, in effect, means that most of them will go free. The administration will loudly and vigorously blame the court, but the responsibility for failing to deliver any sort of justice to those detainees lies squarely on the administration's shoulders. It has no one to blame but itself.
