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Why It Was a Great Victory

1.

Boumediene v. Bush is one of the most important Supreme Court decisions in recent years.1 The Court held by a 5–4 vote that aliens detained as enemy combatants in Guantánamo have a constitutional right to challenge their detention in American courts. The decision frees none of them, some of whom have been held without trial for six years, but it makes it possible for them to argue to a federal district court judge that the administration has no factual or legal ground for imprisoning them. If that judge is persuaded, he must order their release. American law has never before recognized that aliens imprisoned by the United States abroad have such rights. The disgrace of Guantánamo has produced a landmark change in our constitutional practice.

The case raised complex constitutional issues that I must describe, but the principle the Court vindicated is simple and clear. Since before Magna Carta, Anglo-American law has insisted that anyone imprisoned has the right to require his jailor to show a justification in a court of law. (The technical device through which this right is exercised is called a writ of habeas corpus. Addressed to the jailor, it announces that he has custody of a certain person’s body and demands that he justify that custody.)

The Bush administration, as part of its so-called “war on terror,” created a unique category of prisoners that it claims have no such right because they are aliens, not citizens, and because they are held not in an American prison but in foreign territory. The administration labels them enemy combatants but refuses to treat them as prisoners of war with the protection that status gives. It calls them outlaws but refuses them the rights of anyone else accused of a crime. It keeps them locked up behind barbed wire and interrogates them under torture. The Supreme Court has now declared that this shameful episode in our history must end. By implication, moreover, the decision goes even further. It undermines the assumption, widespread among lawyers and scholars for decades, that the Constitution as a whole offers substantially less protection against American tyranny to foreigners than it does to America’s own citizens.

Boumediene was decided by the slimmest of margins. The Court now often divides, in cases of high importance, into a conservative phalanx of Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, and a more liberal group of Justices John Paul Stevens, David Souter, Ruth Ginsberg, and Stephen Breyer.2 The ninth justice, Anthony Kennedy, holds the balance of power; in this case he rejected the phalanx, joined the more liberal group, and wrote the Court’s opinion on their behalf.

The conservatives were outraged but self-contradictory in dissent. Roberts declared that the Court’s decision would have at best a “modest” impact and would be of no use to the detainees because it left them, as a practical matter, with no more opportunity for freedom than they had before. If anything, he said, the decision made it less likely that any of them would be released soon. Scalia insisted, with his usual splenetic flamboyance, that the decision would free dangerous terrorists and “almost certainly cause more Americans to be killed.” Each of the four conservatives signed both dissenting opinions, apparently unconcerned by the contradiction.

Senator John McCain called the decision “one of the worst” in the country’s history. The conservative press was horrified: The Wall Street Journal said that Kennedy had turned the Constitution into a “suicide pact.” No one explained why it would destroy America to allow people who claim innocence of any crime, or threat, a chance to defend that claim before an American judge who is presumably just as worried about his family’s security as the president is. Why would it be suicidal to allow them the same opportunity for defense that we allow people indicted as serial killers?

Senator Barack Obama, on the other hand, welcomed the decision, so the Court’s action may well become an important issue in the coming presidential election. McCain has already promised that if elected he will appoint more justices like Roberts and Alito. It would take only one such appointment to make further decisions like Boumediene impossible, and probably reverse that decision itself.

2.

The immediate background to the Boumediene case is a four-year turf war between the Supreme Court, on one side, and the Bush administration and a Republican Congress on the other. In Hamdi v. Rumsfeld, in 2004, five Supreme Court justices accepted that the government had authority to detain people captured in the fighting in Afghanistan; Congress, they said, had implicitly authorized detention of enemy combatants “for the duration of the particular conflict in which they were captured” when it adopted its Authorization for Use of Military Force (AUMF) after September 11. But a plurality of four justices3 said that an American citizen designated an enemy combatant nevertheless has a right, under the Constitution’s due process clause, to “notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decision-maker.” Justice Sandra Day O’Connor, writing for the plurality, said that the administration might satisfy this requirement through appropriately constituted military tribunals that do not provide the procedures and protections of ordinary criminal courts.

In response, the Defense Department established what it called Combatant Status Review Tribunals (CSRTs) to determine whether detainees, including aliens held at Guantánamo, were correctly designated as enemy combatants.4 These tribunals complied with only a minimal interpretation of O’Connor’s description of what due process required. Detainees were provided with special legal “representatives” appointed by the administration rather than lawyers of their choice. They were not allowed to confront government witnesses, and could call only those witnesses the government decided could be produced “reasonably.” Hearsay evidence was allowed against them, and the government’s factual claims were to be presumed correct unless rebutted. On the same day in 2004 as it decided the Hamdi case, however, the Court also decided, in Rasul v. Bush,5 that the Guantánamo detainees were entitled to bring a habeas corpus challenge to their detention in the federal district court for the District of Columbia.

Lawyers in the Justice Department, relying on their interpretation of earlier Supreme Court decisions, had assured the President that prisoners held there, outside the sovereign territory of the United States, could not bring a habeas petition in an American court. In Rasul, the Court declared that opinion wrong: it held that the statutory scheme in which Congress had stipulated the details of habeas corpus review should be interpreted to grant rights to prisoners located not just within the United States itself but also on territory, like Guantánamo Bay, that is subject to the longstanding, exclusive, and permanent control of the United States.6

The decision in Rasul opened the way for Lakhdar Boumediene and thirty-six others held at Guantánamo to file habeas corpus petitions in federal courts challenging their detention. Boumediene is one of six men born in Algeria who were arrested in Bosnia in October 2001, on suspicion of planning an attack on the US embassy there. They were all ordered released by the Bosnian Supreme Court for lack of any evidence against them; but they were taken into custody by American troops in Bosnia and transported to Camp X-Ray at Guantánamo where they were classified as enemy combatants but neither charged nor tried for any crime.

After the joint habeas corpus petition on behalf of Boumediene and thirty-six other detainees was filed, however, Congress quickly overturned the Rasul decision. In 2005, it passed the Detainee Treatment Act (DTA), providing that

no court, justice, or judge shall have jurisdiction to hear or consider…an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantánamo Bay, Cuba….

The act gave the Court of Appeals for the District of Columbia Circuit Court the “exclusive” jurisdiction to review decisions of the CSRTs; it specified that this review was limited to determining whether these decisions were “consistent with the standards and procedures specified by the Secretary of Defense” and “to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.”7

In the next round of the battle, however, in 2006, the Supreme Court held, in Hamdan v. Rumsfeld,8 that this provision was not intended to apply to petitioners who had already filed habeas corpus applications when the DTA was enacted. Congress returned fire: in the Military Commissions Act of 2006 (MCA), it ruled that the DTA was indeed to apply retroactively, so that even those petitioners had no remedy beyond an appeal from their CSRTs to the D.C. Circuit Court. (McCain voted for this act; Obama voted against it.)

The Court could no longer interpret the habeas corpus statute to provide a remedy for Guantánamo detainees, since Congress had changed the statute. But Congress cannot overrule the Constitution, which provides—in what is called the “suspension clause” —that Congress may suspend the writ of habeas corpus only during an invasion or a rebellion. No one has argued that terrorist attacks constitute either, so Congress had forced the justices to face two new questions. Does the constitutional guarantee of habeas corpus apply to aliens imprisoned at Guantánamo outside the formal territory of the United States? If so, is the scheme provided by Congress in the Detainee Treatment Act and the Military Commissions Act—military tribunals that could be followed by a limited appeal to the D.C. Circuit Court—an adequate substitute for the traditional writ? In Boumediene, Kennedy, for the five-justice majority, answered the first question yes and the second no, and he therefore declared the congressional scheme unconstitutional.

3.

Scalia’s dissent mainly challenged Kennedy’s disposition of the first of these two issues. How should a contemporary judge decide whether the Constitution’s guarantee of habeas corpus applies to aliens held by United States forces outside the United States? Scalia insisted on an historical test. “The writ as preserved in the Constitution, he said, “could not possibly extend farther than the common law provided when that Clause was written.” Kennedy argued that it is impossible to know what the common law was in 1789. In the absence of definitive historical evidence, he said, the issue should be decided on principle. Scalia disagreed on both points. The history was clear beyond doubt, he said, that the writ was not available in an English court for prisoners held outside the formal realm of England— it was not available to prisoners held in Scotland before the Act of Union, for example, even when the crowns of England and Scotland were united in the same king. But even if the history were ambiguous, he added, the DTA/ MCA scheme should not be held unconstitutional because when constitutional issues are doubtful, the Court should defer to Congress as representative of the people.

  1. 1

    Boumediene et al. v. Bush, President of the United States, et al., decided June 12, 2008.

  2. 2

    See my recent book The Supreme Court Phalanx: The Court’s New Right-Wing Bloc (New York Review Books, 2008).

  3. 3

    The four were Justices Breyer, Kennedy, O’Connor, and Rehnquist.

  4. 4

    The Defense Department defines an enemy combatant as “an individual who was part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” It is unclear what limits the department might accept on what counts as “supporting” al-Qaeda.

  5. 5

    Rasul et al. v. Bush, President of the United States, et al., decided June 28, 2004.

  6. 6

    The Court noted that though the treaty signed with Cuba, after the Spanish-American War, provided that Cuba should remain sovereign over the territory of the base, the United States exercised all the incidents of sovereignty there and Cuba none, and American control would remain until surrendered voluntarily.

  7. 7

    Detainee Treatment Act of 2005 (H.R. 2863, Title X).

  8. 8

    The Hamdan decision was also notable for ruling that the military commissions established by the Defense Department to try certain detainees, including Salim Hamdan, were illegal under the laws of war and the Geneva Conventions. Congress then enacted the Military Commissions Act discussed in the text, reinstating the commissions, and the Defense Department has scheduled trials under them including trials of Khalid Sheikh Mohammed, the alleged mastermind of the September 11 terrorist attacks, and Hamdan. See Jennifer Daskal, “Lawless in Guantánamo,” http://www.salon.com/news/feature/2008/05/02/hamdan.

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