The Virginia Journal of International Law will continue its partnership with Opinio Juris this week with an online symposium featuring three articles recently published in VJIL Vol. 48-4, available here.

Our discussion on Tuesday will focus on the constitutional history of American empire at the turn of the twentieth century. In her article, “They say I am not an American…”: The Noncitizen National and the Law of American Empire, Christina Duffy Burnett (Columbia) revisits the historical events surrounding the Supreme Court’s decision in Gonzales v. Williams (1904), which relegated Puerto Ricans to an ambiguous status between alienage and citizenship. Challenging mainstream historical critiques which focus on the ways in which the United States unilaterally imposed its own law abroad and influenced other legal traditions, Professor Burnett analyzes the events surrounding the Gonzales decision to argue that the civic and political leaders of the colonial periphery brought a transnational perspective to the debate over law and American empire and transformed U.S. law in the process. Professor Mae Ngai (Columbia) and Sam Erman (University of Michigan) will be the respondents.

On Wednesday, Martin Totaro will discuss Legal Positivism, Constructivism, and International Human Rights Law: The Case of Participatory Development. Mr. Totaro uses the debate surrounding the right to participatory development as a lens for viewing international human rights law generally. By offering a typology of international human rights law and applying that typology to recent shifts in rhetoric and practice at the World Bank regarding participatory development, Mr. Totaro examines the sociopolitical nature of rights recognition as a means of describing the early stages of norm development within customary international law. Galit Sarfaty (Harvard) will be the respondent.

On Thursday, we will conclude our symposium with a look at the role of empiricism in international investment law. In her essay Empiricism and International Law: Insights for Investment Treaty Dispute Resolution, Susan Franck (Washington & Lee) considers the recent move towards the reintegration of international law and empiricism and proposes five steps towards the creation of an empirical research agenda for international investment treaty dispute resolution. Professor David Zaring (Wharton) will be the respondent.

We encourage you to join in the online discussion this week. Throughout the symposium, we hope that you will visit our website to read full copies of the articles and to continue the scholarly conversation.

Okay, in Rome, not Geneva, but the point holds. Following in Duncan’s footsteps, I’ve been teaching here for the month in a Temple Law summer program. On Friday, we had an interesting visit to the UN’s Food and Agriculture Organization, which is headquartered here, with presentations by several lawyers in the agency’s legal service.

It was interesting stuff. FAO has its hands in a broad range of policy, including things like forestry and land ownership regimes. Of necessity, it takes the road of persuasion and expert assistance rather than trying to exercise muscle that it probably doesn’t have. Probably a nice example of government networks at work, this time through agriculture ministries (here’s a "framework agreement" between the FAO and the USDA). This was all news to me — being an international legal academic these days is about as meaningful as being an "American law scholar" — there’s just way too much to get your hands around. The lawyers, including our host, American Jessica Vapnek, came across as thoughtful and highly knowledgeable.

But the kicker was a short appearance at the end by Deputy Director-General James G. Butler. He is straight out of central casting to play the cattle commissioner of the state of Texas, right down to the cowboy boots and a drawl to match, and here he is, doing the good work of the United Nations. Butler gave a short talk to our students exhorting a life in public service, including, by implication of context, a life in international public service.

I have no idea how Butler came to be number two at FAO (although I assume the Bush Administration had something to do with it), and I have no idea how he really fits into the international bureaucracy (although it doesn’t appear to be in a John Bolton/fox-in-the-henhouse kind of way). This is not the kind of person that gives the anti-internationalists much of a target, for whom the bureaucrats in Geneva have long supplied a punchline. Not only is he not a foreigner, he’s got none of the traits of the chattering classes that might make him look like one, the citizenship notwithstanding. If this is the new face of global governance, sovereigntism hasn’t got a chance.

I wanted to thank all of our participants for a wonderful “insta-symposium” on Boumediene. I certainly learned a tremendous amount from our guests and greatly appreciate their willingness to participate and thoughtfully engage.

I wanted to end by addressing some of the comments expressed concerning the format of these insta-symposia, especially on the issue of diversity. In organizing this event, I took pains to find experts in the field who provided diversity in terms of viewpoint (left and right), seniority (young scholars and seasoned veterans), professional expertise (historians, advocates, military experts, foreign relations scholars), gender, race, etc. But obviously we are always open to constructive criticism. So I wanted to offer you a chance to provide your thoughts about these insta-symposia, both in terms of the format and the diversity of voices. Please vote and, if you so desire, add any additional thoughts in the comments.

Deborah Pearlstein and Michael Newton wonder what’s left of judicial deference in the wake of Boumediene. It’s a good question: certainly if you listen to the Boumediene dissenters, the answer is “not much.” Chief Justice Roberts rails against “unelected, politically unaccountable judges” and “the rule of lawyers” in concluding that “this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants,” Slip Op. 2, 28 (Roberts, C.J., dissenting). And Justice Scalia is quick to echo his colleague, suggesting that the majority has “blunder[ed] in” behind a posture of “faux deference” to hide its “inflated notion of judicial supremacy.” Slip Op. 5 n.1, 6, 17.

In one sense the dissenters’ rhetoric is fairly standard stuff, albeit unbecomingly vitriolic. But there’s an issue here that goes beyond mere rhetoric: I think in this case the dissenters may actually misunderstand the majority’s conception of how deference ought to work. It’s true that the Court is unwilling to defer to the political branches’ categorical elimination of a fundamental liberty right, particularly one which it describes, as Ted White points out, as the only procedural right incorporated in the original Constitution. It is also true that the Court is unwilling to defer on which large categories of procedural rights should be included in “the sum total of procedural protections at all stages, direct and collateral” afforded to accused enemy combatants. Slip. Op. 54. The Court instead insists on setting the essential terms of review itself, guaranteeing meaningful opportunities for petitioners to assess and challenge the government’s evidence; to present exculpatory evidence; to proceed adversarially rather than inquisitorially; to receive speedy review; to mount a legal challenge to the Executive’s power to detain; to obtain an order of unconditional release; and above all else, to avoid indefinite detention on the basis of a process that threatens a considerable risk of error. See generally Slip Op. 59-63.

The Court decided that the CSRT and DTA weren’t intended to offer any of this, notwithstanding Justice Roberts’ description of them as a “good faith” effort to implement Hamdi. (I don’t want to beat the drum on this point any more than I did in my last post, but the Court is absolutely right, and Justice Roberts absolutely wrong. See pp. 3-6 and 26-33 here for a highly condensed summary of why that’s the case.) And so the Court found the MCA unconstitutional.

But it seems clear to me from the tone and approach of the Boumediene majority that a serious and systematic effort to lay down rules—certainly procedural, and perhaps to some extent even substantive—governing preventive detention is likely to be respected by this Court. In its concluding paragraphs, the majority underscores that “[t]he political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.” Slip Op. 69. Earlier in the opinion, the majority emphasized that “proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time.” Slip Op. 65. Given that the Court has just overruled Congress’ first venture into this area, how precisely will this deference be realized? The opinion makes it clear: through the inverse relationship between the scope of habeas review and the procedural rigor of any prior proceedings, a phenomenon that plays a crucial role in the majority’s adequacy analysis. See Slip Op. 52 (“The necessary scope of habeas review in part depends upon the rigor of any earlier proceedings.”); id. at 57 (“habeas corpus review may be more circumscribed if the underlying detention proceedings are more thorough than they were here”).

(It should be noted that all this deference language may have one caveat. The majority pays notable attention to the savings clauses in both Swain and Hayman, which provided that “a writ of habeas corpus would be available if the alternative process proved inadequate or ineffective.” Slip Op. at 48. Congress might thus be well advised to provide for some flexibility in instances where law and equity require—the majority emphasizes, after all, that “common-law habeas corpus was, above all, an adaptable remedy. Slip Op. at 50. But such a clause seems unlikely to have much practical significance. The relatively rare success of original writs after AEDPA suggests that courts are unlikely to use escape clauses or flexible language to run roughshod over a carefully calibrated congressional scheme.)

So, returning to Michael’s important questions about the application of CIPA, the introduction of hearsay, the production of witnesses, interaction with counsel, and so forth, my own strong sense is that the court would love to defer to a reasonable resolution of these issues—specifying the particular mechanisms and legal tests by which the Court’s high-level procedural commandments will be implemented—so long as it is clearly the result of a process aimed at protecting the basic right of a detainee to demonstrate his innocence. And I frankly suspect that such deference is likely even on the question of the substantive authorization to detain, so long as the definitions of detainable persons are sufficiently nuanced—for example, varying in some systematic way, perhaps based on time of detention and the threat that is allegedly presented by the detainee (two factors that are mentioned in the Boumediene majority).

If this is right, then Congress has a choice. It can let the Article III courts work out the crucial questions of our legal structure for counterterrorism, including both the substantive categories of people the President is authorized to detain, and the procedures to determine whether a given petitioner falls in a detainable category. Or Congress can take on those tasks itself. In assessing this choice, Marty Lederman argues quite plausibly that there is no rush to institute a new preventive detention statute, particularly given the unhealthy political climate of election season. But on the broader question of whether Congress should be involved at all, I tend to sympathize with Ben Wittes’ desire for active participation by the most democratic branch of government, largely because the “paradigm problem” outlined here by Geoffrey Corn and David Scheffer fairly demands democratic participation in its solution.

But whatever the wisest course may be, my point is simply that the Court seems likely to defer to reasonable congressional implementation of the broad directives outlined in Boumediene. What are reasonable procedures? How long is a reasonable period of time? So long as Congress appears to have taken the core requirements seriously—so long as it can plausibly claim that it sought to “provide defendants with a fair, adversary proceeding”—the Boumediene majority suggests that congressional determinations about the details of procedure will receive significant deference.

One quick note about Justice Scalia’s accusation that the majority has extended an act of grace to our “enemies” (Slip Op. 1) (Scalia, J., dissenting). This is simply dishonest. Scalia’s formulation assumes, even if only rhetorically and morally, the conclusion of this entire controversy. The ultimate substantive question here, as Steve Vladeck has well articulated elsewhere, is whether these detainees are in fact “our enemies.” It is simply non-sensical to hinge the availability of an innocence-proving mechanism on whether the person seeking to use that mechanism is innocent. Scalia’s prominent and repeated formulation was not a responsible presentation of this case to the country at large.

With that, my time here is up. I’ll leave the last word on what Eric Freedman rightly describes as a momentous case to one of the Court’s most understated members, who offers a typically commonsensical summary: “today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation.” Slip op. 3 (Souter, J., concurring). The time for perseverance is not yet over.

After posting my initial comments, I remained troubled by Julian’s criticism of the majority’s treatment of Johnson v. Eisenstrager. I’d like to offer a few more reflections on that decision here.

The Eisenstrager opinion was certainly based largely on territoriality and citizenship, as Julian points out. However, practical considerations were not irrelevant to the Eisenstrager majority’s decision, or else the majority would not have mentioned them. Although Justice Scalia characterizes the practical considerations raised in Eisenstrager as support for the majority’s holding, rather than part of the holding itself, this seems a difficult distinction to draw with confidence in reading an opinion that was clearly animated by many concerns.

The Boumediene majority explicitly indicates that its functional reading of Eisenstrager is designed to reconcile Eisenstrager with the approach of the Insular Cases and with Reid v. Covert (an explanation that Justice Scalia rejects). So, although Julian is correct that Eisenstrager certainly does not tell us to look only at function, the Boumediene majority is equally correct that Eisenstrager does not tell us to look only at form.

Even to the extent that Eisenstrager does look at “form” (citizenship status plus absence of de jure sovereignty), it is not on all fours with Boumediene because, as the majority points out, the Boumediene petitioners “are foreign nationals, but none is a citizen of a nation now at war with the United States.” The Eisenstrager majority’s opinion is inscribed in, and inseparable from, the traditional statist paradigm in which an individual’s legal standing is determined with reference to his or her country of citizenship, a fortiori in times of war. For example:

- “our law does not abolish inherent distinctions recognized throughout the civilized world between … aliens of friendly and of enemy allegiance”

- “The security and protection enjoyed while the nation of [the alien's] allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us.”

- “The alien enemy is bound by an allegiance which commits him to lose no opportunity to forward the cause of our enemy; hence the United States, assuming him to be faithful to his allegiance, regards him as part of the enemy resources. It therefore takes measures to disable him from commission of hostile acts imputed as his intention because they are a duty to his sovereign.”

- “The essential pattern for seasonable Executive constraint of enemy aliens [has been laid down] not on the basis of individual prepossessions for their native land but on the basis of political and legal relations to the enemy government…”

The above quotations make clear the importance of the Eisenstrager petitioners’ enemy alien status to the majority’s decision-with an emphasis on enemy, not just alien. The Eisenstrager majority accepts the assumption that a given individual is “faithful to his allegiance,” and that it is therefore appropriate to take “measures to disable him from commission of hostile acts imputed as his intention because they are a duty to his sovereign.” Based on this assumption, and buttressed by the U.S. military tribunal’s conviction of the petitioners for providing intelligence to the Japanese forces in China, the majority (in an early articulation of the concept of lawfare) refuses to place “the litigation weapon in unrestrained enemy hands.”

Justice Scalia’s dissent in Boumediene adopts a monolithic notion of “the enemy” that might be appropriate, if not descriptively accurate, in the context of a war between states. It is neither appropriate nor accurate here. Fighting “the enemy, in Afghanistan and Iraq,” which is how Justice Scalia characterizes the United States’s current military engagement, is not the same thing as being at war with Afghanistan and Iraq. According to lists compiled by the Washington Post, citizens of almost 50 countries have been detained at Guantanamo. Certainly, the Eisenstrager majority would have balked at the notion that the United States could “impute” the “commission of hostile acts” as the intention of each of these individuals “because they are a duty to his sovereign.” Precisely because that is not what the United States is doing here, the Eisenstrager rationale cannot be imported wholesale to resolve the Boumediene dilemma.

Whatever the merits or failings of the ascriptive allegiance approach in Eisenstrager, it does not transform the Guantanamo detainees into enemy aliens. And, even if it remains binding precedent, it does not dictate that alien detainees can never seek review of their extraterritorial detention in federal court.

While I fully agree with Justice Kennedy’s majority opinion and Justice Souter’s concurring opinion in Boumediene v. Bush, I found it significant that neither those opinions nor the two dissenting opinions of Chief Justice Roberts and Justice Scalia found it necessary or desirable to refer to international law despite the relevance of that body of law to the earlier Guantanamo cases of Hamdi, Rasul, and particularly Hamdan. Of course, one should never be surprised or alarmed at sole reliance on U.S. law and precedent in a federal court’s adjudication of a dispute. But in Boumediene the opportunity existed to confirm that even if one were to accept the dissenters’ view that Guantanamo remains outside of U.S. sovereign de jure jurisdiction and thus, in their view, outside the reach of the Constitution’s habeas corpus protection, there are minimal due process rights and fundamental guarantees established in the International Covenant on Civil and Political Rights and in the Geneva Conventions (treaties to which the United States is a State Party) and in customary international law (including Article 75 of Geneva Protocol I, reaffirmed by the plurality in Hamdan) that point to a duty by U.S. officials, wherever they operate in the world, to provide far better access to the legal rights underpinned by habeas corpus (as part of the broader principle of a fair and speedy trial) than has been afforded by the Bush Administration in its detainee policies since 9/11 or by the U.S. Congress (in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006).

The self-inflicted and increasingly fatal wound of the government and of the dissenters was the original decision to create the novel “unlawful enemy combatant” category for Guantanamo detainees that purported to deny them both prisoner of war status under the Geneva Conventions (and the fair trial rights of POWs) and any terrorist categorization under U.S. federal criminal law compelling prosecution before long-established criminal courts and under the anti-terrorism laws already available in the U.S. Code.

The legal vacuum into which the Bush Administration threw all Guantanamo detainees distanced such individuals from the rationale advanced by Justice Scalia in his dissenting opinion, where he relies so heavily on distinguishing the Johnson v. Eisentrager precedent from the majority’s view of it. The German defendants in Eisentrager were prisoners of war who had been prosecuted before a duly constituted U.S. military commission in China for violating the laws of war during armed conflict (WWII) outside the United States. Their prosecution, and the Supreme Court’s affirmation of the denial of habeas review in Eisentrager, occurred in part because they had prisoner of war status when prosecuted and the procedures under which they were prosecuted were deemed by the Supreme Court to satisfy due process requirements for a U.S. military trial held overseas on territory over which the United States had neither de jure nor de facto sovereignty. In contrast, it is the lack of prisoner of war status for the Guantanamo detainees (even those with strictly Taliban associations) and the insufficient application of necessary due process standards, particularly in a flawed military commission on territory over which the United States exercises de facto sovereignty (namely, Guantanamo), that compels the majority in Boumediene to focus on the habeas corpus right and the necessity of its availability under the circumstances of Guantanamo.

Scalia fumbles within his own reasoning by analogizing the Guantanamo detainees to “the more than 400,000 prisoners of war detained in the United States during World War II. Not a single one was accorded the right to have his detention validated by a habeas corpus action in federal court—and that despite the fact that they were present on U.S. soil.” If only that were the case under these circumstances!

What if, from the beginning of the U.S. military invasion of Afghanistan in 2001, the government had clearly established the constitutional basis for waging a war (and not the rhetorical battle cry of the so-called war on terror) and established two sets of detainees—those classified as prisoners of war and detained at U.S. facilities either on U.S. territory or on foreign soil (including Guantanamo where U.S. de facto sovereignty resides), and those classified as terrorist suspects and arrested for trial as terrorists before U.S. federal courts?

The prisoners of war—who, by the way, need not satisfy every single condition of Article 4 of the Third Geneva Convention to be accorded prisoner of war status or comparable status by the detaining power—could have been held without access to habeas corpus and without trial for the duration of a reasonably-defined state of war. The government could have used its discretion, assuming the war was properly authorized, legitimately to categorize certain terrorist suspects and most if not all of the Taliban soldiers as prisoners of war. That would have satisfied Justice Scalia’s preference for denial of habeas corpus for such alien enemies. There would not have been a legal vacuum of the character the dissenters in Boumediene have so consistently endorsed in the Guantanamo line of cases. Granted, those individuals whom the government desires to classify as international terrorists would have to be indicted, arrested, transported to the United States, and brought to trial in accordance with U.S. requirements of due process, including habeas corpus. The artificially-concocted category of “unlawful enemy combatants,” which has been the gateway to the Bush Administration’s distortion of both the law of war and anti-terrorism law, never would have survived the earliest scrutiny.

“What if?” never trumps reality, but the Supreme Court’s majority opinion in Boumediene invites us to speculate how different this entire mess would have been if only American policy-makers had had greater faith in long-standing federal law and the Constitution. The dissenters are seemingly intimidated by the terrorist suspects and others swept up for detention at Guantanamo, all of whom were labeled as “unlawful enemy combatants.” The dissenters continue propping up the deeply flawed detention procedures and military commission system that were carved out of fear not only of terrorism but of the Constitution, rather than upholding the Founders’ commitment to the rule of law. It is the latter that will best defeat international terrorism directed against the United States and not the Bush Administration’s approach, which was struck down once again by the Supreme Court.

Many thanks to the Opinio Juris team for hosting this conversation, and to colleagues who have already offered such interesting and insightful posts. In this spirit of exchange, I’ve crafted comments that I hope will challenge and extend some of their observations, as we all continue to digest this momentous opinion on- and off-line. The benefit of continued reflection will no doubt reveal shortcomings in my preliminary reactions. My current research takes a comparative look at the application of constitutional protections to non-citizens when a government acts extraterritorially, so stay tuned for more in-depth analysis in my next article!

The Boumediene majority frames its question broadly, but answers it narrowly. It asks “whether foreign nationals, apprehended and detained in distant countries during a time of serious threats to our Nation’s security, may assert the privilege of the writ and seek its protection” (slip op. at 15). But, as Marty Lederman pointed out in an early post, the Court’s decision does not address this broader question, confining its holding to “a territory, like Guantanamo, over which the [U.S.] Government has total military and civil control” (slip op. at 16). The majority speaks the language of “de facto sovereignty,” which Roger Alford in his second post appropriately highlights as a critical concept in the majority opinion. It seems to me that this term is used more as a counterpoint to the Government’s emphasis on de jure sovereignty, and does not do much independent work as a meaningful concept in and of itself. At a minimum, the majority is clear about what it understands this concept to encompass for the purpose of deciding this case: those enclaves in which “no [municipal] law other than the laws of the United States applies” (slip op. at 21), and in which the United States can, as a practical matter, enforce the judgments it issues (id.).

The territorial limits of the majority’s logic should provide comfort to its detractors, and prevent complacency among its enthusiasts. The Supreme Court has yet to issue a blanket opinion prohibiting the U.S. government from acting arbitrarily vis-à-vis non-citizens in its custody and control overseas, whether the constraints on arbitrary action come from the Constitution or from international law. A starting-point for such a decision could be the majority’s statement that “[e]ven when the United States acts outside its borders, its powers are not ‘absolute and unlimited’ but are subject ‘to such restrictions as are expressed in the Constitution’” (slip op. at 35) (citing Murphy v. Ramsey, an 1885 case upholding a statute denying the vote to any “bigamist, polygamist, or any person cohabiting with more than one woman” in the Territory of Utah). However, it seems to me that the majority here is more concerned with what it views as the coordinate branches’ gall in attempting to insulate their activities from judicial scrutiny by relying on a century-old lease, than with articulating a comprehensive theory of what Peter Spiro in his post dubs “constitutional cartography” (a job for us academics).

It comes as no surprise that Justice Kennedy authored the majority opinion in this divisive case, or that his reasoning about the extraterritorial reach of habeas jurisdiction is framed expressly in functional, rather than formalist, terms. Prior to the Boumediene decision, I had begun thinking of a more context-sensitive approach to the extraterritorial application of constitutional constraints and protections in terms of what I call “bounded functionality” (this is perhaps one version of the “something in between” that Roger evokes in his first post on Gerry Neuman’s typology of approaches to the territorial reach of the Constitution). I look forward to continued conversations about how these approaches can inform judicial reasoning.

In his second post, Julian Ku criticizes the majority’s focus “practical and functional considerations” for its unpredictability. In his view, the majority’s willful misreading of Johnson v. Eisenstrager will force government lawyers to assume maximalist, rather than minimalist, interpretations of applicable protections overseas. Whatever the moral merits of this result, Julian worries about the effect on judicial legitimacy of a technique that Justice Scalia-criticizing Chief Justice Roberts-has notoriously derided as “faux judicial restraint.”

Although the majority’s decision certainly has weaknesses, any departure from Eisenstrager is not, in my view, one of them. As Paul Halliday eloquently emphasized in his post about the lack of precise historical analogs, “To ask this question of the past is to seek what is not there: the present.” Julian is probably correct that explicit, rather than disguised, disavowal of precedent is preferable, although I am not convinced that the majority’s discussion of Eisenstrager belongs in the latter category, since I believe Eisenstrager is distinguishable. This is certainly one of the many threads to pursue in future discussions of the Boumediene decision and its significance for apprehensions and detentions carried out by the United States outside Guantanamo.

In the end, this is a case about borders: the borders of habeas jurisdiction, and the border between law and politics. The first has been clarified somewhat, but both remain contested.

I regret that my post is delayed somewhat by travel. I am at present writing from Venice, en route to which I had occasion to do more thinking about the implications of Boumediene than I did for detailed dissection of its precise phraseology. The fortuity of my presence overseas allows me to report the prevailing media spin that Boumediene represents a reestablishment of American law and a repudiation of the U.S. military acting as “jailor, judge, and jury.”

Franklin D. Roosevelt captured the essence of the moral struggle to preserve the American way of life in World War II by telling the nation that “the mighty action we are fighting for cannot be based on a disregard of all things worth fighting for.” The struggle to refine the optimal balance between the president’s duty to “preserve, protect, and defend” the constitution and the executive obligation to protect American lives and property may very well be the most enduring question of our time. At its heart, Boumediene rests on the straightforward legal determination by the Court that the Suspension Clause applies to the detainees in U.S. custody at Guantanamo Bay, followed by the rather predictable conclusion that the circumstances motivating the Congressional deprivation of habeas rights to the detainees did not rise to those specified in the constitution itself. Viewed in the stark terms portrayed in the media, the case can be seen as a validation of essential conditions of human liberty against the exercise of raw governmental power. Given that a president who disagrees with the court’s conclusions has publicly stated that he will nevertheless comply with its opinion, Boumediene does represent all that is best about an America dedicated to law and the preservation of life and liberty.

At the same time, there is a vaguely disquieting dimension to the Boumediene decision. The heart of the majority analysis relies on the assumption that the present system of Combatant Status Review Tribunals combined with the oversight and remedial powers of the D.C. Circuit Court of Appeals is inadequate to protect the essential human liberty of the detainees. The factual record indicates otherwise given that far more detainees have been released from Guantanamo than are currently in custody, and the current procedures provide both for periodic individualized reviews as well as a new CSRT when evidence surfaces that could result in a reversal of a previously determined status. By sheer coincidence, the Secretary of Defense recently ordered a new CSRT for Haji Bismullah on the basis of new evidence that could lead to his release. Because the Secretary’s request rendered the prior CSRT a non-final decision, the Solicitor General subsequently requested that the Court remand Bismullah’s case from its pending decision in Gates v. Bismullah. Although Justice Souter postulates the necessity for the majority opinion on the truism that “some of these petitioners have spent six years behind bars,” the evidence is that the system is indeed working to release those who do not pose a continuing threat to American interests and citizens. Furthermore, the majority establishes constitutional habeas rights, even as it acknowledges that an Article III process will not foreclose further confinement for future petitioners on the sole basis of a hostile status.

I do not believe that the Court intended its Boumediene reasoning to be read as automatically requiring release of any of the present detainees who do represent a continuing threat to the American constitutional order. The decision nevertheless contains the seeds for profoundly troubling extrapolations. For example, if the requirement for a “competent tribunal” found in Article 5 of the Third Geneva Convention is distorted in the future to mean an established Article III court, then the hands of the military would be bound with devastatingly deleterious effects on military operations overseas. The negotiating record for the Geneva Conventions and the official Commentary are both clear that the phrase “competent tribunal” was specifically negotiated to be much more operationally flexible than the preexisting domestic court systems. Boumediene cannot be properly read as applying in the context of an international armed conflict wherein the clear mandates of the Geneva Conventions have been applied.

Finally, while Boumediene is portrayed as somewhat inspiring and idealistic, there is a troubling disconnect in its pragmatic implications. In practical terms the majority candidly admits that its decision “does not address the content of the law that governs petitioners’ detention.” I am struck by the immense disconnect between the moral certainty with which the court creates a substantive right that can be gleaned neither from the law of armed conflict nor from any clear precedent, but at the same time creates such enormous uncertainty and moral confusion. There are more than a few federal judges who are today beginning to ponder some of the following important questions as cases begin to be filed: What are the standards of review? Does the voice of military expertise get ANY deference? Are the previous findings of CSRT panels to be completely discounted as if they were mere martinets in the hands of an overweening chief executive? Can any evidence that would be inadmissible hearsay if a specific petitioner were charged criminally provide the basis for continuing detention? What are the limits of the right to petition the court for witnesses on the petitioners’ behalf? Do the normal CIPA provisions apply [which are quite similar to those used in the military commission proceedings] or will a future Court hold that Boumediene requires some more expansive access for detainees to personally assess and rebut extremely sensitive classified information?

In the end, after the inevitable delays caused by debate, deliberation, and development, I am hopeful that the imprimatur of Article III authority actually provides minimal substantive difference. In that event, federal habeas review will have served to validate the professionalism and patriotism of those who have sacrificed the past six years to protect America while respecting legal norms. Boumediene represents a striking reinforcement of our constitutional separation of powers; I pray that the quest to balance civil liberties does not in the end deprive our citizens of their lives or liberties.

I want to return to the issue of the Court’s discussion of de facto sovereignty, which has the potential to be one of the most important holdings of Boumediene. The reason it is so important is that the Court’s articulation of de facto sovereignty has the potential to be the new test for the application of constitutional guarantees to noncitizens abroad. This has ramifications far beyond the narrow issue of habeas corpus. So what exactly is de facto sovereignty?

I see several possible interpretations of de facto sovereignty based on my reading of Boumediene: (1) the territorial model; (2) the occupation zone model; (3) the military base model; (4) the effective control model; (5) the physical custody model; and (6) the exercise of power model.

The territorial model. First, de facto sovereignty could mean something quite narrow. The narrowest reading of de facto sovereignty would emphasize that Guantanamo is almost unique in that it effectively falls within the territory of the United States but for the fact that Cuba retains ultimate de jure sovereignty. Under this definition, Guantanamo Bay would constitute a data set of one.

The occupation zone model. A second definition would focus on all territories that the United States physically occupies and controls. This would encompass a much broader category of territory, including the American zone in Germany after the Second World War and arguably all of Iraq during the period when Iraq was governed by the Coalition Provisional Authority. It also would apply to the Green Zone today.

The military base model. A third definition would focus on the individual facilities that we occupy and control subject to lease agreements with other nations. Under this definition the Constitution would extend to any alien physically located in any United States military base anywhere in the world. It also would extend to aliens held in any United States prison, barracks, or detention facility anywhere in the world that is within the practical control of the United States.

The effective control model. A fourth definition is even broader and would emphasize effective control of a detention facility. The Court emphasized that “Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.” So the Constitution would apply if the United States exercised effective control over a detention facility even though the detainees are held by coalition forces or military personnel from other nations pursuant to an agreement with the United States.

The physical custody model. A fifth possible definition of de facto sovereignty would emphasize physical custody over the person rather than the territory. This definition would essentially define de facto sovereignty as equivalent to control over the individual’s physical movement. If a person has been arrested and his movement is forcibly circumscribed by United States authorities, then the United States is exercising control over that person and the Constitution applies to their conduct.

The exercise of power model. The broadest possible definition of de facto sovereignty is that the Constitution applies to noncitizens abroad any time the United States exercises authority over those individuals. This definition parallels Justice Brennan’s dissent in Verdugo-Urquidez: If the Constitution authorizes our Government to enforce our laws abroad, then when the Government agents exercise this authority, the Constitution travels with them. Under this definition, the Constitution is an unavoidable correlative of the Government’s power to enforce the law.

I don’t think it is clear which of these possible definitions future courts will adopt. It really is anyone’s guess. The Court in Boumediene seemed to emphasize a functional, ad hoc approach that would prevent the political branches from exercising power and then manipulating the circumstances under which that power is exercised so as to circumvent constitutional guarantees:

I also would like to begin by expressing my thanks to the Opinio Juris team for giving me the opportunity to share some thoughts on the Boumediene decision. My post is a bit tardy due to the fact that I have been in Israel staying in some places with limited internet access. More on some perspective judicial review of military issues inspired from this place towards the end.

As I read through the Boumediene decision, I kept asking myself the same question: what happens now? How will the government respond to the ruling and the inevitable deluge of habeas petitions challenging enemy combatant designations? With full judicial review of these determinations now a certainty, it is natural to assume that the key concern for the government will be to ensure subsequent process is more “protective” of detainee rights. But as I read through the opinion, it struck me that the real battles of the future will not be about process, but about the substantive definition of the term “enemy combatant.”

When the CSRT’s were established, there was clearly an effort to model them after the Geneva Prisoner of War Convention (GPW) article 5 tribunal. Article 5 of the GPW requires that any doubt related to a detainees qualification for POW status must be resolved by a review tribunal. But the value of this model was limited by a simple reality: unlike an article 5 tribunal which applies the definition of prisoner of war (POW) found in article 4 of the GPW, the CSRT’s could not rely on a well established international definition of “enemy combatant.” Instead, the Bush administration created the definition to be applied by the CSRT’s. As the majority reminded us (as if we needed reminding), the scope of this definition was broad enough to include not only individuals captured on the battlefield, but also individuals apprehended in locations far removed from any combat activities.

Although the definition of enemy combatant was not the focus of this opinion, it seems to me that it is remains the critical issue lying just below the surface. Why do I believe this? Professor Kent already noted the sentence in Justice Kennedy’s opinion that hints at the possibility the use of more robust procedure might obviate the need for habeas access (Boumediene suggests that constitutional habeas may be unavailable for some foreigners held abroad if “there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power” (slip op. 65)). But I have my doubts that Justice Kennedy’s use of the term “process” is limited to procedure. This is because of the simple fact that the CSRT is in essence an article 5 tribunal. There is nothing magic about characterization of the review tribunal. Instead, the critical distinction between the CSRT’s and an article 5 tribunal is the standard applied to justify indefinite detention as a necessary incident of war. As a result, it seems to me that because the procedures for an article 5 tribunal are essentially analogous to those of the CSRT’s, the Court was not indicating that merely re-designating the CSRT’s to an article 5 tribunal would cure the defects. Nor that in the future prisoners of war would also be entitled to challenge their detention through the Great Writ. This is because of this fundamental distinction between an article 5 tribunal and the CSRT’s, a distinction that is more about substance than process.

Nor do I believe the distinction is merely definitional. Once an individual is designated a POW, a framework carefully developed to limit the arbitrary exercise of authority by the detaining power comes into force (see here). By removing these detainees from the protections of the GPW, it was the Bush administration that deprived them of the substantive and procedural checks to such arbitrary power, vesting the government with a degree of discretion that the Court was unwilling to permit. Thus, it is this full spectrum of protections for POWs – including a more limited definition of that term – that in my opinion would provide the “process” that Justice Kennedy suggested could obviate the need for judicial review.

So it seems that because the designation of enemy combatant has been used for individuals far removed from the “core” meaning of that term (captured on the battlefield after engaging in hostilities against U.S. or coalition forces), the definition of that term will now become central in the inevitable habeas litigation that will follow this decision. Tinkering with the CSRT procedures will do nothing to resolve the fundamental dilemma lying at the core of this process: the legitimacy of the expanded definition of enemy combatant resulting from treating the struggle against international terrorism as a “global war.” Relying on the current definition of enemy combatant used by the CSRT (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) will still require the reviewing court to decide how far “part of or supporting” extends.

So for me, the real “what now” is how the courts will react to the expansive definition of enemy combatant that has resulted in “generational” detention not only for individuals captured in a zone of active military operations, but also those captured in places far removed. I wonder if the government will move to codify that definition or perhaps adopt one more narrowly tailored to the traditional notion of a battlefield belligerent. I certainly believe that such a move is now far more likely than before this decision.

What seems certain is that until the scope of this definition is legally sanctioned, detainees will continue to argue that their attenuation from the military component of the war on terror makes their designation as enemy combatants illegitimate. And until that issue is addressed, the government will continue to struggle to defend depriving individuals of their liberty indefinitely based solely on the “necessities of war.” If there is one certain outcome – and in my opinion benefit of this opinion - it is that after a six year saga of legal opinions, policy decisions, and ongoing detentions the government will finally be forced to clearly articulate and defend the rationale for the expansive application of the term “enemy combatant” that is at the heart of the concept of a Global War on Terror.

A final thought inspired by my current locale. Last week I participated in a conference on the law of armed conflict at Hebrew University, and since then I have been staying with a close friend who recently retired as a Colonel from the legal department of the Israeli Defense Force (his last few years spent as the legal advisor to the commander of the West Bank command), and another close friend from the IDF legal department who studied with me at the Army JAG School. This has given me the opportunity to share perspectives on the role of the judiciary in wartime decisions. What I have found fascinating is routine intervention by Israeli courts in ongoing military operational decisions. But what I have found even more fascinating is how unremarkable this role seems to my friends and other Israeli legal experts at the conference. For them, a judicial opinion prohibiting certain interrogation techniques, or establishing the law applicable to targeted killings, or responding to a request to halt the destruction of a home in the West Bank is a normal part of the legal process. Perhaps more importantly, there seems to be a strong consensus that such a judicial role strengthens the legitimacy of military operations.

Don’t get me wrong, I have not become an advocate of routine judicial intervention in operational military decisions, and I have expressed to my friends here my doubts related to the competence of judges to rule on such matters. But it does strike me that perhaps judicial oversight of certain aspects of military affairs, especially those involving mature theaters of operation and the application of newly conceived concepts to justify government actions, might not be so outrageous. As several other bloggers have noted, this opinion will likely have a substantial positive impact on the international credibility of the U.S. But perhaps it will also make the job of the armed forces a bit easier by finally forcing greater clarity in the standards to be applied during military operations, which seems precisely the benefit that makes my Israeli friends feel so comfortable with their process.

Perhaps the least persuasive part of the largely unpersuasive Boumediene opinion is its attempt to distinguish the most relevant and binding precedent on the subject: the Supreme Court’s 1950 decision in Johnson v. Eisentrager.

In Boumediene, the Court effectively overruled Eisentrager’s holding that enemy aliens cannot have the benefit of habeas corpus when held outside the territory of the United States. (This is not surprising, I suppose. In Hamdan, the Court essentially overruled Eisentrager’s holding that the Geneva Conventions cannot serve as a basis for a remedy in a civilian proceeding.)

Justice Scalia’s dissent, which probably went overboard in some parts, was absolutely right in its evisceration of the Court’s analysis of Eisentrager (see pp. 10-13 of Scalia’s dissent). The Court did not say it was overruling Eisentrager, but it is hard to see how it could have reached its decision today without doing so. Go ahead. Read Johnson v. Eisentrager and try to convince yourself that the denial of the writ to enemy aliens captured and held overseas during wartime was simply based on practical and functional considerations rather than on territoriality and citizenship.

Does it matter if the Court departs substantially from past precedent? Not to the many commentators (on this blog and elsewhere) who have hailed the decision. But even if one is happy with the result, one has to be worried about a judicial methodology that veers rather dramatically from precedent without admitting that it is doing so. Not only does this further undermine the legitimacy of the Court, but it makes it hard for future decisionmakers to know what is or is not legal? The Bush Administration and Congress can rightly complain that the Court has moved, and continues to move, the goalposts here.

It was totally reasonable for lawyers prior to Hamdan to believe that military commissions were statutorily authorized, the Geneva Conventions were not self-executing, and prior to Boumediene that the writ of habeas corpus and U.S. constitutional rights do not extend outside the territory of the United States to enemy aliens. Indeed, it would have been irresponsible for an attorney advising the President NOT to point out that the legal authority existed.

What now? The unacknowledged departure from precedent represented by Hamdan and Boumediene leave us in uncharted territory. A future decisionmaker has got to assume, and attorneys will have to advise him or her, that the writ of habeas corpus almost certainly extends to wherever the U.S. holds de facto control and where practical considerations do not forego extending the writ (the Green Zone in Iraq and Bagram, Afghanistan come to mind). Further, such attorneys should also advise that enemy combatants there enjoy the protection of at least the Fifth Amendment Due Process rights identified in Hamdi and probably others as well. Nor can congressional action limit or constrain the exercise of these rights in any meaningful way. The entire process of detaining enem