Boumediene v. Bush and the Day Habeas Corpus Reached Guantanamo Bay

If you wanted to design a piece of land to confuse a constitutional lawyer, you could hardly do better than the one the United States leases from Cuba at the southeastern end of the island. It is not American territory, say the lawyers who like the formality. It is under American control in every way that matters, say the lawyers who like the facts. It is governed by a lease from 1903 that gives the United States complete jurisdiction and control while recognizing that Cuba keeps what the document calls ultimate sovereignty, and for a hundred years the question of which clause of the Constitution reaches it was a question for law reviews.

In June 2008 it became a question for the Supreme Court, and the Court gave an answer that conservatives have been arguing about ever since. In Boumediene v. Bush, decided 5 to 4, the justices held that foreign nationals held as enemy combatants at Guantanamo Bay have a constitutional right to petition a federal court for a writ of habeas corpus. This post lays out the text, the four cases that led to it, the opinions, and the debate. I think the majority got the principle partly right and the remedy wrong, and I will try to show why.

The text: the Suspension Clause

The case turns on a single clause of the Constitution, Article I, section 9, clause 2:

"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."

Define the terms. The writ of habeas corpus is the ancient judicial order that requires a jailer to bring a prisoner before a court and justify the detention. It is the means by which a person confined by the government can demand to know why. Hamilton, in Federalist No. 84, called the practice of arbitrary imprisonments, in all ages, the favorite and most formidable instrument of tyranny, and treated the writ as one of the Constitution's principal safeguards. The Founders put the guarantee in the original text, before any Bill of Rights, and they made it a limit on Congress, which may suspend the writ only in two circumstances and only by law.

The question in Boumediene was whether that clause applies at a military base on foreign soil, to an alien captured abroad and held as an enemy fighter, when Congress has passed a statute saying the courts may not hear his petition.

The road to the case: four steps

The legal fight over Guantanamo ran for six years, and the order of events matters.

1. Rasul v. Bush (2004). After the attacks of September 11, 2001, the United States began holding captured fighters at Guantanamo in January 2002. In Rasul, decided June 2004, the Court held 6 to 3 that the federal habeas statute extended to detainees there, because the United States exercised complete jurisdiction and control over the base. That was a ruling about the statute, not the Constitution.
2. The Detainee Treatment Act of 2005. Congress responded, signed on December 30, 2005, with a provision removing federal court jurisdiction over habeas petitions from Guantanamo detainees and substituting a limited review of military tribunal decisions in the D.C. Circuit.
3. Hamdan v. Rumsfeld (2006). On June 29, 2006, the Court held 5 to 3, with Chief Justice Roberts recused, that the military commissions the administration had created were not authorized by statute and violated the Geneva Conventions' common Article 3. It also held that the jurisdiction-stripping provision of the 2005 Act did not apply to cases already pending. The decision invited Congress to act, and Congress did.
4. The Military Commissions Act of 2006. Signed on October 17, 2006, the act created a statutory framework for the commissions and, in section 7, stripped the courts of jurisdiction to hear habeas petitions from any alien detained as an enemy combatant, including those already filed.

That sequence is a conversation between the branches. The Court spoke on the statute; Congress answered; the Court spoke again; Congress answered again. By the time Boumediene arrived, the question was no longer what the statutes say, but whether Congress may do what it did at all. If the Suspension Clause applies, then Congress had suspended the writ without invoking rebellion or invasion, and the act was invalid. If it did not apply, the act was a legitimate exercise of Congress's war powers.

The majority: Justice Kennedy

Justice Anthony Kennedy wrote for himself and Justices Stevens, Souter, Ginsburg and Breyer. The opinion makes four moves.

First, the writ was a structural protection, not a privilege of citizens. Kennedy read the Suspension Clause as part of the separation of powers. It was meant to ensure that neither the executive alone nor the legislature alone could decide who is imprisoned without a check from the judiciary. And he wrote that the laws and the Constitution are designed to survive, and remain in force, in extraordinary times.

Second, sovereignty is not the test. The government argued that the Constitution does not follow the flag onto land where the United States has no formal sovereignty. Kennedy rejected a rule that would let the political branches turn the Constitution on and off by their choice of where to hold a prisoner. A lease that gives the United States total control while formally preserving Cuba's sovereignty, he said, would make that possible: the government could hold anyone anywhere it chose to arrange a gap between control and title, and the Constitution would not reach.

Third, a functional test. Instead, the Court looked at three factors: the citizenship and status of the detainee and the adequacy of the process through which that status was determined; the nature of the sites where apprehension and then detention took place; and the practical obstacles inherent in resolving the prisoner's entitlement to the writ. Applying them, the majority concluded that the detainees, who had been held for years with only a Combatant Status Review Tribunal reviewing their classification, were entitled to the writ, that Guantanamo was effectively within the United States's control, and that the practical obstacles were manageable.

Fourth, the substitute procedure was inadequate. Congress could displace habeas with a substitute only if the substitute was an adequate and effective one. The Detainee Treatment Act's review in the D.C. Circuit, in the Court's view, was not, because it did not allow the detainee to present evidence that had not been in the tribunal record, or to challenge the sufficiency of the government's case with the kind of review habeas provides.

One line of the opinion deserves quotation, as it tells you what motivated the majority:

"Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers."

That is a statement of principle that conservatives should be able to admire, even where they dispute its application. The principle that the government may not imprison without a check is not liberal or conservative. It is the principle of Magna Carta, of the Habeas Corpus Act of 1679, and of the Fifth Amendment.

The dissents

The dissents were two, and between them they state the conservative objection with unusual force.

Chief Justice Roberts, joined by Scalia, Thomas and Alito, wrote that the majority was replacing a system designed by the people's representatives with a set of shapeless procedures to be defined by federal courts at some future date. His core complaint was that the Detainee Treatment Act had provided, in his words, the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants, with review by an Article III court of the military's determinations, and that the Court had struck it down without waiting to see how it worked. The majority, in his view, had acted before the process Congress designed had been tested, and had left the lower courts with nothing but a promise that the process would be sorted out later.

Justice Scalia, joined by the same three, wrote a separate dissent that is among the most vigorous of his career. He argued that the Court was conferring, for the first time in the nation's history, a constitutional right to habeas corpus on aliens detained abroad by the military in an ongoing war, and that the historical record supported no such right. The writ, he said, had never run to enemy aliens held outside the sovereign territory of the Crown. He concluded with a prediction: the Nation, he wrote, will live to regret what the Court has done today. He thought the decision would result in the release of dangerous fighters and would make it harder to fight a war.

A fair reader should absorb three of their points. One: the Founders' habeas was a remedy for subjects and residents within the realm, and the historical evidence for its extension to alien enemies abroad is thin. Two: war is a political question under the Constitution, committed to Congress and the President, and judges have no particular competence in assessing battlefield conditions. Three: Congress and the President had worked out, over a series of statutes, a process, and the Court should have allowed it to work before invalidating it.

The case for the majority, stated fairly

I want to give the other side its best argument, because a conservative worth the name should be able to state it.

The argument is that the Constitution is a charter that limits the government wherever the government acts. In Reid v. Covert (1957), a plurality of the Court had held that when the United States prosecutes its citizens abroad, it must do so according to the Constitution. The Framers did not conceive of a government whose powers were subject to the Bill of Rights in Boston and unlimited in Havana. And the Suspension Clause is a limit on Congress's power; to say that Congress could escape it by drawing a line on a map is to say that a limit on power is optional.

Also, the facts of the detentions were disturbing. The detainees' status had been decided by tribunals that were not courts, and a review process that cannot reach the underlying facts can leave an error uncorrected. That is the majority's point.

The answer

Here is where I part from the majority, in numbered points.

1. The Court's functional test is a standing invitation to litigate. Kennedy's three factors have no obvious limit. Do they apply to Bagram? To a ship at sea? To a battlefield in Iraq? The lower courts were left to work it out, and the D.C. Circuit, in Al Maqaleh v. Gates (2010), held that detainees at the Bagram air base in Afghanistan had no such right, applying Kennedy's factors to reach the opposite result. A rule whose application requires that much sorting is not a rule; it is a license for judges.
2. The Constitution commits war to the political branches. Article I gives Congress the powers to declare war, to make rules concerning captures on land and water, and to make rules for the government and regulation of the land and naval forces. Article II makes the President Commander in Chief. Those are the clauses that govern the treatment of captured enemies. A court that declares itself the supervisor of the detention of enemy fighters has moved into territory the Constitution assigned to others.
3. Congress had acted, twice. The legislature had debated and passed the Detainee Treatment Act and the Military Commissions Act. It had listened to the Court's decision in Hamdan, and it had responded within four months. That is the constitutional conversation working as designed. For the Court to strike the response on a theory of the Suspension Clause that had not been established in two centuries was, I would argue, an unnecessary assertion of judicial supremacy.
4. But the principle is not worthless. The majority was right about one thing: a government that can imprison a person without any independent check on whether he is in fact an enemy has an unlimited power. A narrower remedy, one that required a prompt, meaningful review by an independent tribunal and left the details to Congress, would have honored both the Suspension Clause and the war powers. The conservative position is not that no review should be available, but that the political branches should design it.

The tension between those points is the honest state of the question. Some of the most respected conservative jurists have come down on each side.

What changed at the base afterward

After Boumediene, detainees began to file habeas petitions in the federal district court in Washington, and the judges there held hearings. The detainees' lawyers sought to show that the government's evidence was insufficient; the government defended its classification of the men. A number of petitions were granted, and a number denied. The D.C. Circuit, over the following years, narrowed the standard, setting the standards the government's evidence had to meet. In practice the decision produced neither the mass release that Scalia feared nor the sweeping vindication that its defenders hoped.

What it did produce was a regime of judicial review that has lasted to the present. The detainees who remained at the base were not released en masse, and the dispute over the base's future became a political one, concerning transfers, trials and the cost of operating it, which belong to Congress and the President. That is an outcome, I think, in which the Court's reach turned out to be shorter than the dissenters feared and longer than the government wished.

For the wider debate on how the country has balanced security and liberty since 2001, see The Patriot Act After Two Decades, Two Conservative Verdicts Compared, and for the larger question of what Congress authorized in the first place, see Sixty Words Passed in 2001 Still Carry America's Wars, and That Is a Problem. For the history of the commander-in-chief claim, Commander in Chief Means Less Than Presidents Claim and More Than Critics Say is the companion piece.

The case in brief

1. Boumediene v. Bush, decided June 12, 2008, held 5 to 4 that the Suspension Clause of Article I, section 9 reaches foreign nationals held as enemy combatants at Guantanamo Bay.
2. It followed Rasul (2004), the Detainee Treatment Act of 2005, Hamdan (2006) and the Military Commissions Act of 2006, a series of exchanges between Court and Congress.
3. Justice Kennedy's majority used a functional test and found the substitute procedure inadequate; Chief Justice Roberts and Justice Scalia dissented, arguing that war belongs to the political branches and that the history did not support the right.
4. The decision's practical reach proved narrower than feared, as Al Maqaleh showed in 2010, but its functional test left the lower courts with open questions.
5. The principle that no government may hold a person without an independent check is sound, and the better course is for Congress to design a prompt and meaningful review.

What you can do: read the Suspension Clause and the war powers clauses on the Constitution page, then ask your representative whether Congress should write a permanent, bounded detention-review statute instead of leaving the question to courts.