Boumediene v. Bush IV--Summary of June 12, 2008 Decision

This is a huge case, probably one of the biggest of the term. It is one that arose in the context of six years of the "War on Terror," since the 9/11/01 attacks on America. The holding of the case, that the enemy combatant detainees held by the US at the Naval Station at Guantanamo Bay, Cuba, have the constitutional right of habeas corpus under the US constitution, the result of which is that they should receive speedy hearings in the federal courts, reiterated a holding made in the Rasul decision in 2004. To that extent, the majority tries to argue that the decision in this case is anything but radical.

The dissenters, however, would not be appeased. Through this decision they not only smell an inter-branch conflict, with the Court trying to "trump" the Executive and Congress in the terribly controversial issue of how to treat those detained in other parts of the world in the post-9/11 frenzy. In my judgment, one of the deciding factors in this case was the majority's perception (expressly mentioned by three of the Justices) that six years detention for some of the internees, without meaningful judicial or legal scrutiny, and with no potential end in sight, was a bit too much to bear. One can't help but think that the majority felt that something "out of sync" with American values is happening with this situation at Guantanamo. In contrast, the dissenters argued that the systems put in place by the political branches, through Combatant Review Tribunals, were sufficient to extend some rights to detainees. I believe, however, that what fundamentally guided the dissenters' view of this case, and their chagrin at the majority, is the sense that we have serious thugs at Guantanamo, that this War is ongoing, that the Court is ill-equipped to butt its nose into administration affairs, and that therefore it ought simply to "let the system work," whatever that really means.

Behind everything, however, is the doctrine of habeas corpus, the right to have your case heard or to question the reasons for your detention. It is this "Great Writ" which, at the end, was the stated goal of the majority to protect.

This decision, also, is by far the longest decision this term. To summarize it in an essay is precarious. My three essays presenting the background of this case should help do that. In the remainder of this essay, then, I will give the barest historical/background review and then focus on a few of the legal arguments made by Justice Kennedy, the author of this 5-4 opinion. The opinion could really be the basis for an entire seminar at a law school. Maybe it will be...

A Few Background Facts

Even the statement of these "few" facts takes a lot of time:

"In the Authorization for Use of Military Force (AUMF), Congress empowered the President “to use all necessary and appropriate force against those ... he determines planned, authorized, committed, or aided the terrorist attacks ... on September 11, 2001.” In Hamdi v. Rumsfeld, 542 U.S. 507, 518, 588-589, 124 S.Ct. 2633, 159 L.Ed.2d 578, five Justices recognized that detaining individuals captured while fighting against the United States in Afghanistan for the duration of that conflict was a fundamental and accepted incident to war. Thereafter, the Defense Department established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at the U.S. Naval Station at Guantanamo Bay, Cuba, were “enemy combatants.”

Petitioners are aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by CSRTs. Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a writ of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U.S. territory. The D.C. Circuit affirmed, but this Court reversed, holding that 28 U.S.C. § 2241 extended statutory habeas jurisdiction to Guantanamo. See Rasul v. Bush, 542 U.S. 466, 473, 124 S.Ct. 2686, 159 L.Ed.2d 548 . Petitioners' cases were then consolidated into two proceedings. In the first, the district judge granted the Government's motion to dismiss, holding that the detainees had no rights that could be vindicated in a habeas action. In the second, the judge held that the detainees had due process rights.

While appeals were pending, Congress passed the Detainee Treatment Act of 2005(DTA), § 1005(e) of which amended 28 U.S.C. § 2241 to provide that “no court, justice, or judge shall have jurisdiction to ... consider ... an application for ... habeas corpus filed by or on behalf of an alien detained ... at Guantanamo,” and gave the D.C. Court of Appeals “exclusive” jurisdiction to review CSRT decisions. In Hamdan v. Rumsfeld, 548 U.S. 557, 576-577, 126 S.Ct. 2749, 165 L.Ed.2d 723, the Court held this provision inapplicable to cases (like petitioners') pending when the DTA was enacted. Congress responded with the Military Commissions Act of 2006(MCA), § 7(a) of which amended § 2241(e)(1) to deny jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants, while § 2241(e)(2) denies jurisdiction as to “any other action against the United States ... relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of a detained alien determined to be an enemy combatant. MCA § 7(b) provides that the 2241(e) amendments “shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after [that] date ... which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained ... since September 11, 2001.”

The D.C. Court of Appeals concluded that MCA § 7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners' habeas applications; that petitioners are not entitled to habeas or the protections of the Suspension Clause, U.S. Const., Art. I, § 9, cl. 2, which provides that “[t]he 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”; and that it was therefore unnecessary to consider whether the DTA provided an adequate and effective substitute for habeas."

Legal Arguments

It might be most helpful just to state the legal conclusions, and then show how the Court got there in a few instances. First, the Court concluded that the congressionally-passed Military Commissions Act ("MCA") did in fact deny federal courts jurisdiciton to hear habeas corpus actions. Then, the Court had to deal with the issue of whether Guantanamo Bay, Cuba was within the reach of protection of the US Constitution. It concluded it was. In legal language, this means that the Suspension Clause has full effect at our Naval Station in Guantanamo Bay. By the way, the Suspension Clause is Art. 1, sec. 9, cl. 2, and provides, "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."

Next the Court turned to the rights possessed by those adjudged enemy combatants at Guantanamo. Aliens detained there as enemy combatants were entitled to the privilege of habeas corpus to challenge the legality of their detention. This is the "huge holding" of the case, the one correctly focused on by the media. In fact, most scholars now think that this part of the decision will eventually lead to the closure of Guantanamo because the legal proceedings will so "disrupt" the operation of the place and perhaps show even further to the world some of the things that went on there that the US wanted to keep quiet for the past six or so years.

But the Court wasn't yet finished. It also concluded that the provision of the MCA denying federal courts jurisdiction to hear habeas corpus actions pending at the time of its enactment was an unconstitutional suspension of the Great Writ. Finally, in words that were no doubt motivated by a "majority of the majority's" sense that six years of detention without meaningful judicial review was just fundamentally wrong, the Court concluded that detainees were entitled to prompt habeas corpus hearins and could not be required to exhaust other review procedures.

Three of the majority members (Souter, Ginsburg, Breyer) wrote separately to emphasize that the majority decision wasn't, in fact a radical decision after all. Four years ago, in the Rasul case, the Court had ruled that habeas rights were available to the people interned at Guantanamo. Thus, in a sense, the Court was simply reiterating what it had said four years ago. Congress and the Executive, to be sure, had reacted to the Court's 2004 ruling in the meantime, but the Court had fundamentally not changed its opinion. Though two members of the Court had changed (the addition of Chief Justice Roberts and Justice Alito), their replacement didn't ultimately affect the result in the case at bar.

The next several months will see the implementation of this decision. It will be an interesting ride.

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