Guantanamo: Round 3 -- Boumediene v. Bush

Yesterday the Supreme Court heard oral argument on perhaps the most important case of our generation, Boumediene v. Bush, which asked the Court to say whether the GTMO detainees have a constitutional right to habeas corpus to challenge their detention and, by extension, whether the Executive can detain people indefinitely in the GWOT?  

Habeas corpus is a fundamental (perhaps the most fundamental) safeguard against abuse of power. It allows a person who has been imprisoned to challenge the the imprisonment by asking a court or a judge to order that he or she be removed from imprisonment and brought to court.  

If the detainees have no constitutional right to habeas, then -- essentially -- the Supreme Court will have decided that our Constitution ends at the water's edge;  once you step beyond the shores of the US, our government is unrestrained by the Constitution.  If you believe that the powers and legitimacy of our government, by contrast, are derived from the consent of the governed and all our government's powers flow from the Constitution, such an idea is absurd:  How can the government act at all, if not in conformity with the fundamental law -- the Constitution -- that created it?

The purpose of this diary is to explain how we got here.  The Boumediene case is complex from a procedural point of view and a number of the most important questions in yesterday's hearing focussed on what the Court should do if it decides that the US Court of Appeals for the DC Circuit got the decision below wrong.  The detainees have been held for 6 years -- and if the DC Circuit's decision is any indication, it will refise to follow the Supreme Court's ruling and will continue to find excuses to hold the detainess regardless of the law.

In order to understand what is going on you have to understand that the Constitution prohibits Congress in the Suspension Clause from suspending the writ of habeas corpus, except in limited circumstances.  But the Constitution does not explicitly state in positive terms that there is a constitutional right to habeas corpus.  The Constitution assumes that the right will exist, unless Congress validly acts to suspend it.  Now rights must come from somewhere, and if there is such a right to habeas corpus it could be based on three things:  First it could be entirely a statutory creation (and indeed there is a federal habeas statute that creates a statutory right to habeas corpus and sets out the circumstances in which it mabe be sought).  Second, there may be a common law right to habeas corpus -- that is, unless Congress changes the law (via a habeas statute), at common law (even without a statute) there is a right to seek habeas relief. Or third, there could be a constitutional right to habeas corpus -- that is, there is an irreducible right to habeas relief regardless of whether Congress has created a statutory right or changed the common law, unless Congress acts to suspend the writ.  Of course there might be a statutory right as well as a constitutional right and a common law right.  Or any combination.  

This is the third time the question of the rights of the detainees at Guantanamo has been before the Supreme Court.  But it is the first time that the constitutional question in its pure form has been before the Court.  

In Rasul v. Bush, the first detainee case to reach the high Court, the Supreme Court stated that Guantanamo was not beyond the reach of US law  and that the Executive lacked the authority to deny the detainees access to the US justice system. The Court ruled that the Executive had to provide the detainees with a meaningful opportunity to challenfge their detention, and as a result the Department of Defense created the Combatant Status Review Tribunals or CSRTs (which have been plagued with a host of problems). The Supreme Court implied that it was basing it's decision that GTMO was not beyond the reach of US law on the constitution, but it did not say so clearly.  Because there was also a habeas statute, the Court's decision could be read as interpreting the statute only and not reaching the the constitutional question. (This is an approach that the Supreme Court usually follows on the ground that it makes no sense to decide what the constitution means unless you have to.  If interpreting a statute will fix the problem and resolve the case, the Supreme Court would rather base its decision on the statute.)

The second case to reach the Supreme Court was Hamdan v. Rumsfeld. The case was essentially a case about the power of the Executive to act without authorization by Congress.  In Hamdan, the Court ruled that the Executive lacked the Constitutional authority to set up military commissions to try captives taken in the "war on terror". It required the Executive to seek Congressional authorization for any military commissions.  As a result the Congress passed the Military Commissions Act of 2006, or MCA.  In the MCA Congress authorized military commissions, set out the law that regulated their conduct, and stripped the courts of jurisdiction to hear other challenges to the detentions, including habeas cases.  Congress had previously restricted the detainees rights to seek habeas relief in the Detainee Treatment Act of 2005, or DTA.

Because Congress has apparently repealed the habeas statute as to the detainees (by passing the MCA), now, of course, the question of whether the detainees can seek habeas relief is purely a question of whether they have a constitutional right to habeas relief.  (Congress can change the common law by changing a statute, but it can only change a constitutional right by amending the Constitution itself).  

So, turning to Boumediene itself:  The case is actually a consolidation of two cases:  Boumediene v. Bush and Al Odah v. United States.  Lakhdar Boumediene was one of many detainees who had petitioned for habeas relief in federal district court in Washington, DC.  Those cases were decided in two groups.  One group, which included the case of petitioner Boumediene, was decided by U.S. District Judge Leon and was dismissed.  The other group, among which was Al Odah's case, was before U.S. District Judge Green who decided not to dismiss the cases but to reach the merits of the petitioners' claims.  However, Judge Green certified her decision for interlocutory appeal and so her cases went up to the US Court of Appeals for DC (DC Circuit) at about the same time as the cases dismissed by Judge Leon.  

While all the cases were on appeal in the DC Circuit, Congress changed the law that authorized federal courts to grant habeas relief.  (Congress had changed the law once before in the DTA, but the DTA's changes were not explicitly retroactive, so there was a strong argument that they did not apply to the cases that were in the District Court when the DTA was passed.  The MCA by contrast shought to strip the courts of jurisdiction over all cases, not just cases filed after the statute was signed into law.  Usually courts take a dim view of Congress seeking to change the law that applies to a pending case and require Congress to be very, very clear that it indends such a result.

The DC Circuit asked the detainees and the government to address the effect of the MCA on the cases before it on appeal. The biggest problem with the jurisdiction stripping provisions of the MCA is  that the Constitution requires, in the Suspension Clause that Congress may not suspend habeas corpus outside of certain circumstances, and that a suspension probably occurs whenever Congress prohibits use of the writ and doesn't provide an adequate alternative remedy.  In a breathtakingly broad -- and nasty -- decision, the DC Circuit decided that it did not even need to ask whether the constitution was violated by the MCA because the detainees have no constitutional rights at all.  The Court reasoned that the Constitution does not apply in Guantanamo and the detainees are not legal aliens in the US or US Citizens and so do not even have the right of invoking the Suspension Clause, let alone the constitutional right to due process of law before being imprisoned.  Here's the decision.

It is important to note that this decision did not directly address the question that was presented when the cases were decided in the District Court or when they first came up on appeal.  There had been no MCA and the DTA did not apply to the cases that were pending when it was passed.

Because the DC Circuit's decision was deeply at odds with what the Supreme Court seemed to have said about the rights of detainees at GTMO in the Rasul case, the detainees sought expedited review in the Supreme Court.  I think it would be fair to say that many people thought that the Supreme Court would grant the review, but initially, on April 2, 2007, the Supreme Court punted and denied review.

In an extremely unusual step, some of the justices issued a reasoned denial of review (usually denials of review don't give reasons).  Justice Stevens and Kennedy gave reasons for the denial here.  They explained that because the petitioners had not gone through the procedures mandated by the DTA, they had not "exhausted" their remedies and they could re-present their arguments after going through the DTA review procedures.  Justices Breyer, Souter and Ginsburg also gave reasons why they believed that the Court should have taken the case.

(For lovers of inside baseball, this was very interesting.  To take a case, only four Justices must vote to hear the matter.  The fact that Justice Stevens -- perhaps the Court's most liberal member -- voted against hearing the case proxbably meant that he was not sure how Justice Kennedy would vote on the merits of the appeal -- or he hwas sure Kennedy would vote with the Roberts, Scalia, Alito faction of the Court).  

Then two things happened.  Congress failed to restore habeas rights at GTMO and a reserve military officer, Stephen Abraham, came forward with revelations about how the CSRT procedures had been conducted.  

As Jonathan Haefetz has argued, Abraham's revelations, which he provided in a sworn declarationshow clearly

how the CSRT made decisions based on a haphazard collection of generic information that rarely related to the detainee in question and that "lacked even the most fundamental earmarks of objectively credible evidence." He also explains how various agencies withheld exculpatory evidence from the CSRT, and how the CSRT's three-member panels were pressured from above to find that detainees were, indeed, "enemy combatants."

On the last day of the term, the Supreme Court reversed itself and decided to review the case.

Here are all the Supreme Court briefs.

And here is a transcript of the oral argument.