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Why It Was a Great Victory

Was Scalia right to make the history of the Constitution decisive? We can read the suspension clause in two ways. We can take it to declare, as Scalia did, that the United States should never deny any prisoner the rights he would have had if he had lived in England or America in 1789, except in rebellions or invasions. Or we can read it to state a constitutional principle: that except in those cases government must allow anyone it imprisons the right to challenge his imprisonment in court. Like other constitutional principles, this requirement could not be read as absolute. It would not require habeas rights when it would be impossible or particularly burdensome to grant them—for example, if a prisoner would have to be flown to a US court from a battlefield abroad.

That qualification would not, however, allow government to escape habeas responsibility by building its prison camps in a foreign territory that is as much under its control as any base in this country. As Kennedy said, “The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.” Scalia’s historical reading demeans the Constitution and insults those who made it. It is absurd to translate their clear declaration of principle into a rule pointlessly limiting prisoners’ rights to those enjoyed at some fixed and essentially arbitrary date.9 Kennedy adopted the second, principled, reading. The scope of the constitutional right to habeas corpus, he said, should be determined by what he called a “functional” test: the right should be available unless it would be, in his words, “impracticable and anomalous” to grant it—as it would be in the midst of military operations.

Scalia had a further argument. In a 1950 decision, Johnson v. Eisenträger, the Court refused habeas rights to German soldiers who were captured in China, where they had gone to continue the fight against America after Germany surrendered in 1945. They were convicted of war crimes by a military commission there and then imprisoned in an American military base in occupied Germany. Justice Robert Jackson said, for the majority, that since the Germans were aliens who had never been in the United States they had no constitutional right to contest their imprisonment in an American court. Scalia insisted that Jackson had decided that aliens held abroad never have such rights; he said that the majority in Boumediene was overruling an established precedent.10

But though some of the language in Jackson’s 1950 opinion supports that reading, the facts of that case were sufficiently different from those of Boumediene to allow Kennedy to distinguish the two cases. Jackson’s opinion emphasized, for instance, that the German prisoners conceded that they were citizens of a defeated enemy and were continuing to wage war against the United States. He said that if prisoners like those were entitled to the writ, it

would be equally available to enemies during active hostilities…. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.

The decision in Eisenträger is therefore consistent with the principled reading of the suspension clause if we assume, as Kennedy did, that it would have been anomalous and impractical to grant the right to the German soldiers in that case, but not to Boumediene and the other petitioners held at Guantánamo.


Kennedy next held that the review scheme Congress created in the DTA and the MCA was not an adequate substitute for the constitutional right to habeas corpus he had declared the detainees to have. A federal court with habeas jurisdiction has extensive fact-finding power. When someone convicted of a crime in a state criminal court trial petitions a federal court for review of the conviction through a writ of habeas corpus, the federal court normally accepts the state court’s determinations of fact. But a federal court may be much less deferential when it is reviewing an executive tribunal, like a CSRT, particularly when the tribunal’s procedures fall short of the normal trial court standards. Kennedy listed some of the tribunal’s flaws: a detainee, he said,

does not have the assistance of counsel and may not be aware of the most critical allegations that the Government relied upon to order his detention…. [He] can confront witnesses that testify… but given that there are in effect no limits on the admission of hearsay evidence—the only requirement is that the tribunal deem the evidence “relevant and helpful”—the detainee’s opportunity to question witnesses is likely to be more theoretical than real.

In these circumstances, he continued, a habeas review could consider exculpatory evidence not submitted to the tribunal. It could also allow witnesses to testify whom the government had claimed not to be reasonably available, and consider new evidence made available only after the tribunal hearing was concluded.11

Roberts devoted his lengthy dissent to rebutting this part of Kennedy’s argument. He claimed, first, that the CSRT procedures that Kennedy found inadequate in fact satisfy the due process standard O’Connor laid out for citizen detainees in her Hamdi opinion. A detainee who had a right to go to federal court on a habeas writ would, he said, have nothing to complain about when he got there. That did not respond to Kennedy’s point that a federal court would have extensive powers to make new findings of fact. It is worth noticing, moreover, that O’Connor’s standards of due process did not command a majority of the justices in Hamdi and do not appear, at least in retrospect, to satisfy the test she herself proposed: any procedure for classifying citizens as enemy combatants, she said, must balance the grave harm done to someone unjustly detained against the risk of releasing someone who would rejoin a terrorist group.

The balance O’Connor struck in 2004, which allowed a military commission to appeal to hearsay evidence and to presume that the military’s determination is correct unless shown otherwise, might well be deemed to leave prisoners without adequate protection.12 In any case, she assumed that those detained after a review of the kind she described would not be subject to harsh interrogation, which is routine at Guantánamo.

Roberts also argued that the D.C. Circuit Court, which the congressional scheme authorized to conduct “exclusive” review of CSRT determinations, could remedy any defects in a CSRT’s fact-finding as well as a federal district court exercising habeas jurisdiction could. The DTA does not explicitly give the D.C. Circuit power to remedy such defects, but Roberts said that the Court should assume that Congress meant it to have that power in order to save the scheme from being declared unconstitutional. The assumption seems implausible since, as Kennedy pointed out, the evident purpose of the congressional scheme enacted after Rasul was to give the detainees less protection than habeas rights would give them. But even if we assume that the D.C. Circuit could rectify any factual errors, the procedures it would have to use would be much clumsier and take much longer than those that a federal district court, which is constituted to try matters of fact, has available. D.C. Circuit review is therefore not the equivalent of a habeas corpus review, particularly when we remember, as Souter emphasized in his brief concurring opinion, that the detainees have been imprisoned without trial and subjected to coercive interrogation, in some cases for six years.


The rationale of the majority in Boumediene challenges two distinctions that many lawyers have accepted as obvious but that must now be reexamined. The first is the distinction between the constitutional rights of American and alien prisoners; the second is the distinction between the rights of those we imprison on American soil and those we imprison everywhere else in the world.

Neither distinction makes sense in principle. Of course America owes special concern to its own citizens and it must of course grant rights to participate in its political processes only to them. Aliens have no right to enter the country, moreover, and they have only limited rights when the government wishes to expel them and detains them for that purpose. But America owes its duty to respect fundamental human rights, including the right not to be imprisoned unjustly, to all people who come under its authority; and there can be no moral justification for discriminating against foreigners either in the definition or the enforcement of those rights. The Constitution’s text suggests that this moral principle is a constitutional principle as well, because it declares that all “persons” are owed due process. But Jackson, in his Eisenträger opinion, said that foreigners are owed less by way of due process and other rights against unjust imprisonment than citizens, particularly when they are not in America.

It is easy to understand the appeal of that idea in the circumstances of that case: it seemed alarming to suppose that German soldiers who confessed to continuing to war against the United States had the same rights against imprisonment under our Constitution as any American has. It is a different question, however, whether foreigners who deny that they have made war on the US or pose any threat to it have those rights.

The Boumediene decision should now be recognized as ending the discrimination that Jackson claimed. The Constitution’s structure of protections against unjust imprisonment is an interlinked system. It makes little sense to think that aliens have full constitutional rights to habeas corpus without also assuming that they have the rest of the due process rights the Constitution has been understood to grant. The United States should not imprison anyone in circumstances in which its fundamental law prohibits imprisoning its own citizens. We do treat our soldiers accused of war crimes differently from ordinary criminals: they are subject to the Uniform Code of Military Justice. Foreigners accused of waging illegal war against us must be tried under standards no less rigorous than that code.

The Boumediene decision also undercuts the geographical distinction that Jackson took to be crucial and on which the Bush administration relied. The Court, it is true, emphasized the special history and circumstances of Guantánamo Bay. But the functional test Kennedy described as setting the boundaries to those rights cannot justify an automatic distinction between that base and other bases, like Bagram in Afghanistan and our bases in Iraq, where our control is more temporary but is nevertheless sufficiently complete to permit courts to treat the executive branch as fully responsible for what happens there.13 It follows that constitutional rights should extend to prisoners of the United States wherever and in whatever circumstances enforcing those rights would be effective, not offensive to another nation, not inimical to military operations, and not unduly expensive or otherwise “anomalous.”

That functional standard would exclude Jackson’s nightmare; it would not require our military to fly anyone they capture in battle to Washington, together with the soldiers who captured him as witnesses, for a trial to justify his detention. Kennedy’s test makes that an easy case. But the standard does mean that the president cannot escape his constitutional responsibilities by finding some spot on a map to hold those he wants to torture that is fully controlled by but not leased to the US.

Courts applying that functional standard could develop a new legal scheme to replace the flawed detention system that the Bush administration and Congress constructed and the Supreme Court has now dismantled— unless new right-wing appointments to the Supreme Court make that impossible. But that would in any case take years of litigation and probably several fresh appeals to that court, and it would be better if Congress, in the next administration, created a new statutory system. Any new scheme must have three goals. It must enable the government efficiently to try those prisoners it can show guilty of war crimes. It must permit the government, at least for some specified period, to prevent truly dangerous terrorists who cannot be prosecuted from carrying out more attacks. And it must try to insure that those who have been wrongly imprisoned are promptly freed.

Several schemes have been suggested by constitutional lawyers and other commentators. One fairly modest proposal would require the government, within some months after capture or arrest, to designate any prisoner it wishes to continue to detain either as (1) in effect a prisoner of war who can be tried for war crimes but is otherwise entitled to the protection of such prisoners under international law or (2) as a criminal suspect who must then be indicted and tried for crimes under our domestic law.14 Under the Geneva Conventions, prisoners of war cannot be subjected to coercive interrogation; they must be given accommodation as comfortable as that of the soldiers who guard them; and they have other important rights. It is unclear how long international law would permit those classified as prisoners of war to be detained: traditionally prisoners can be held until the cessation of the hostilities in which they were engaged and it is unclear what, if anything, would count as the end of the terrorist threat. It would therefore be necessary for any statute enacting this scheme to provide some time limit for this detention that Congress could, of course, later extend if it deemed necessary. The Boumediene decision guarantees that anyone doubtfully detained as a POW could eventually challenge the government’s classification in court.

Members of terrorist groups do not, however, fit the classical profile of POWs. Even those the US might capture in battle do not fight as soldiers of some enemy power; they belong to extremist groups rather than the forces of sovereign powers, they do not wear uniforms, and they operate as guerrillas. Some of those the government wishes to detain, moreover, were not captured in battle at all. Lakhdar Boumediene was arrested because the American embassy in Bosnia suspected he was in touch with members of al-Qaeda.

It would therefore be necessary to expand the definition of a prisoner of war, and some commentators have suggested that it would be better to avoid the traditional POW regime altogether. They favor designing a new category of persons who can be detained on a showing, perhaps before a new and specially constituted security court, that their release would be very dangerous.15

That suggestion has obvious advantages; it would permit classifications and discriminations that make more sense than the traditional POW structure in a world of continuing terrorist threat. But it has disadvantages as well. Preventive detention—imprisoning someone because he is deemed to be dangerous and not because he has broken a law—is always regrettable and it might be better to limit its use to the well-established POW model than to add a further precedent. It would probably be politically easier to adopt the traditional POW system of rights, moreover, than to enact equivalent protections for a new category. I therefore prefer adapting to our new circumstances the present structure of international law.

The alarmist claims of Scalia, McCain, and others that the Boumediene decision imperils national security are groundless. It remains to be seen what standards the federal district courts adopt on habeas review, how the different lawsuits are consolidated in a small number of courts, what procedures judges develop for allowing classified information to be studied only by the judge and defense lawyers with security clearances and how appellate courts, probably including the Supreme Court on other occasions, react to these district court decisions. There is no reason to think that new procedures will release a greater number of genuinely dangerous terrorists than would be released under the Bush administration’s procedures, which are inefficient as well as unfair. We will, however, gain back some of the national honor that the cowardly decision to imprison without charges anyone who might conceivably threaten us or might conceivably have information useful to us has cost. If McCain makes the Boumediene decision a political issue, we must hope that Obama will make recapturing that national honor a goal in which Americans of both parties can take pride.

——July 16, 2008

  1. 9

    Scalia insists that the Constitution must be understood in the light of the intentions of those who made and ratified it. But he confuses two questions: what those persons meant to say or accept and what they expected would be the result of saying or accepting what they did. Only the first question is relevant and it poses a question of translation, not historical practice. See the debate between Scalia and myself in his book A Matter of Interpretation: Federal Courts and the Law (Princeton University Press, 1998).

  2. 10

    If so, the Court had already done that in Rasul. As Souter said in his concurring opinion in Boumediene, “No one who reads the Court’s opinion in Rasul could seriously doubt that the jurisdictional question must be answered the same way in purely constitutional cases, given the Court’s reliance on the historical background of habeas generally in answering the statutory question.”

  3. 11

    Kennedy gave the following example: one of the petitioners before him, Mohamed Nechla, asked his CSRT to take evidence from his employer who would declare that he was not a member of al-Qaeda, but the tribunal held that this witness was not reasonably available. Nechla’s attorney had offered to produce the employer to a habeas review court, which would be bound to listen to him.

  4. 12

    Indeed, I believe she did not satisfy her own test even in 2004. See my article in these pages, “What the Court Really Said,” The New York Review, August 12, 2004. The confused and depressing history of the Defense Department’s tribunals and commissions confirms that judgment. For a brief account, see Andy Worthington, “Military Judge Dashes Hopes that Guantánamo Detainees Have Rights as Prisoners of War,” www.huffingtonpost.com/andy-worthington/military-judge-dashes-hop_b_77957.html.

  5. 13

    Scalia and other critics of the decision cite the possibility of prisoners in these bases claiming habeas rights as an illustration of the terrors to which it might lead, and Linda Greenhouse, in The New York Times, said this was “a proposition that would be unlikely to get any votes, let alone five, from the current justices” (June 14, 2008). I am not so sure, but I am describing what I take to be the implications of the decision, not predicting when they will be realized.

  6. 14

    I suggested such a scheme, and described it in more detail, in these pages some years ago. See “Terror & the Attack on Civil Liberties,” The New York Review, November 6, 2003. Minimal guarantees, like those provided in Common Article 3 of the Geneva Conventions, would protect detainees in the period between capture and designation.

  7. 15

    The merits of such schemes are discussed in an instructive article by Anthony Dworkin, “The Supreme Court’s Guantánamo Ruling and the Future of the War on Terror.” See www.crimes ofwar.org/onnews/news habeas.html.

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