A Second Take on Boumediene: Habeas Corpus and Military Commissions

A Second Take on Boumediene: Habeas Corpus and Military Commissions

It didn’t take long for the media and the commentators to quickly seize on the real question after Boumediene: now what? Let me begin by suggesting there are at least four categories (and probably more) of cases in which we must separately assess Boumediene’s implications:

  1. Non-citizens detained at Guantánamo challenging their detention.
  2. Non-citizens detained at Guantánamo challenging their pending trial by military commission.
  3. Non-citizens detained elsewhere outside the United States.
  4. Non-citizens detained in the United States (i.e., al Marri)

Although there is a whole lot to be said about each of these categories, I want to begin with (2), because in a way, that’s the simplest.

Before September 11, it was well established that habeas corpus was an appropriate means through which to mount a collateral attack on the exercise of military jurisdiction. At various points, especially during the 1950s and 1960s, the Supreme Court struggled over whether other challenges to military trials could be litigated via habeas, but jurisdictional challenges were just about always allowed.

Hamdan, of course, reaffirms that idea, especially in one of the more overlooked parts of Justice Stevens’s opinion for the Court–Part III, where he rejected the idea that the courts should abstain from deciding Hamdan’s habeas petition until the military commission proceedings had been complete. Simple enough to express, the idea is that a jurisdictional defect implicates the defendant’s right not to be tried in the first place, and not just the rights that would attach to such a trial. (Double jeopardy case law is somewhat analogous).

Anyway, I suspect the upside of all of this is that habeas petitions mounting collateral attacks on the jurisdiction of the military commissions under the Military Commissions Act of 2006 (“MCA”) can now go forward, and Hamdan itself probably will prevent the habeas courts from staying their hand. The question then becomes whether the military commissions will wait for the habeas proceedings to run their course, or whether the habeas courts won’t even give them that chance, and will order them to hold off…

But whatever the procedural posture, I wonder if the end result is to actually accelerate the resolution of fundamental questions concerning the constitutionality of the substantive provisions of the MCA? For example, if someone like Omar Khadr challenges his military commission on the ground that, inter alia, he’s entitled to combatant immunity, it strikes me that such a claim could get resolved much more quickly now than if he had to raise it as a defense at trial, raise it in a post-conviction appeal to the “Court of Military Commission Review,” and then raise it in a subsequent appeal to the D.C. Circuit.

Ultimately, then, I think today’s decision ensures that the one set of questions that can now be answered perhaps the most expeditiously are the substantive questions concerning the MCA. And hidden within some of those questions are perhaps the most “meta” questions at stake in these cases — the substantive detention criteria, the scope of the conflict, and, oh by the way, the applicability and enforceability of international humanitarian and human rights law…. so things may not take quite as long to drag out as we might think, it just might be the military commission cases, and not the challenges to detention without trial, that provide the vehicle.

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Humble Law Student
Humble Law Student

Here’s something I don’t understand. The majority opinion repeatedly emphasizes that habeas doesn’t run immediately after capture. This repeated emphasis, however, makes it sound like habeas does run soon thereafter as long as military necessity doesn’t dictate otherwise. (assuming all of this happens on non-US territory).

My reading is that this opinion necessitates that the writ does generally run to detainees held in Iraq or Afghanistan (if just perhaps after the passage of a few months or so). So, my question is (some stealing from Scalia) on what basis could Congress suspend the writ in Iraq or Afghanistan, when the Suspension clause only mentions domestic events as the trigger — invasion or rebellion. The court would necessarily have to dramatically expand the normal definitions of those words to allow a suspension in such places in order to prevent the ludicrous result of greater protections overseas (because it can’t be suspended) than at home (where the writ can be suspended).

Humble Law Student
Humble Law Student

Another question, if someone wants to address it. I have trouble understanding how the court can justify its lack of deference to the political branches (and in this case an agreement by the two) on this matter of detention and military policy.

As the majority opinion points out, the common law cases on the writ don’t definitively answer the question–this issue seems to fall into a grey area. Consequently, why does the court have the institutional competence and constitutional authority to decide this issue? If the current result is truly demanded by a “proper” understanding of the writ, I find the lack of common law caselaw supporting this understanding to be very problematic (as the dissent points out). This problem (or “grey area”) suggests that rather than truly being an issue about the fundamental meaning of the great writ, instead it is largely a foreign policy choice that is appropriately left to the political branches (or at least deserving of deference).

Humble Law Student
Humble Law Student

Prof. Vladeck, To your first response, I believe I understand your point. But, doesn’t your position require a pretty radical conclusion regarding the scope of the writ that is pretty divorced from any historical practice? (although it is a reasonable conclusion based on the text) My contention is that we, arguably, have two readings of the suspension clause. Your reading, while a reasonable reading of the language, requires a pretty radical result, and additionally, finds little if any support in the common law caselaw and from other evidence. The other reading, is also a reasonable reading of the clause, but it fits into and is explained far better by the common law caselaw and other evidence. The majority opinion sidesteps the triggering language question. But, it seems that the court should (or will) have to chose one reading or the other. And, your reading of the triggering language doesn’t appear to really fit with the other discussions regarding the writ in the majority opinion. On the other hand, my reading appears to have been implicitly rejected (or will have to be if the question is addressed). So, I guess it just leaves me confused. . .

Justice Kennedy Should Be Impeached
Justice Kennedy Should Be Impeached

If one believes that the Suspension Clause is meant to protect Congress’s power to temporarily preclude access to the courts during domestic emergencies, I just don’t see how anything that happens overseas could, of itself, factor into that analysis.

But that ignores the problem of noncitizens held abroad having greater habeas rights than citizens engaging in an insurrection or rebellion. Citizens may have their habeas rights suspended, but foreigners warring against us may not. That dichotomy only makes sense if noncitizens lack habeas rights when in foreign territory. I think HLS’ argument is that your position is incoherent, hot mess.

David Glazier

While superficially the line of argument discussed in the prior comments suggests potentially greater rights for persons abroad, I’d suggest this misses the key point. Presumably the detainee’s ultimate goal is not a day in court; what they really seek is their release. And as Munaf showed today, there is little likelihood of overseas detainees getting this even if they end up with ready access to our courtrooms. There is no explicit provision in U.S. law allowing the military to detain citizens in the U.S. Thus when an actual invasion or insurrection might require a commander to take extraordinary measures for the protection of his forces or to accomplish their mission — e.g., detaining Americans they consider to pose a threat, this can only be done if the writ of habeas is suspended. Without suspension, any judge hearing a challenge to an American’s detention will have to rule for the petitioner’s release. In effect, then, the right to the writ in the United States granted to anyone other than actual enemy combatants is the right to immediate release. Overseas, however, the situation is wholly different. The customary law of war, as well as the Third and Fourth Geneva Conventions, give… Read more »

Justice Kennedy Should Be Impeached
Justice Kennedy Should Be Impeached

So this whole situation is truly sui generis.

If so, then the Bush administration’s legal strategy is just fine. An open question has no answer, and any legal strategy is fair game. But that doesn’t eliminate the fundamental illogic of Kennedy’s opinion.

Justice Kennedy Should Be Impeached
Justice Kennedy Should Be Impeached

Why is it a critique of Kennedy’s opinion that it could, in some cases, give more habeas rights to (belligerent)non-citizens than to insurrecting or rebelling citizens?

Because belligerence abroad and belligerence domestically are parallel circumstances.

Isn’t it at least as “illogical” to read the Suspension Clause as protecting habeas for citizens overseas but not non-citizens?

No. It always makes sense to presume citizens have obligations to and rights against their government. That’s what citizenship means.

Anon
Anon

Well, I’m glad the argument why Kennedy’s opinion is illogical is based on something that “always makes sense” notwithstanding the absence of any textual support…

Justice Kennedy Should Be Impeached
Justice Kennedy Should Be Impeached

Well, I’m glad the argument why Kennedy’s opinion is illogical is based on something that

I am not certain why you need textual support for the notion that citizenship implies rights and duties within a polity and unless you claim that it does not always make sense to presume citizens have rights against and obligations to their government, I do not understand your objection. But you could start with Kennedy’s own opinion in Verdugo, if you cared to drop the snark.

Benjamin Davis
Benjamin Davis

Rather than think of this in terms of separation of powers, might we think of it in terms of the three international law jurisdictions of jurisdiction to prescribe, jurisdiction to enforce, and jurisdiction to adjudicate that form essential aspects of state sovereignty. If we look at the United States in the world as operating as a state, then the question is to what extent will the separate judicial power under the Constitution be allowed to extend within the idea of the jurisdiction to adjudicate (recognizing that the parallellism is imperfect). What has been a cause for consternation for sometime for me in watching the formalists seeking an inferior Judicial Power as a matter of separation of powers, has been the space between that constructed judicial power and the concept of jurisdiction to adjudicate. I have wondered why there is such a conservative pressure to rein in courts, and came to what seemed a logical conclusion that they have found ways to exercise greater power through the political branches. The skew of the Executive and Legislative visions in essentially ignoring the treaty and customary international law constraints on the United States seems to have created a gap – an unnatural gap… Read more »

Boumediene is wrongly decided, Steve Vladeck
Boumediene is wrongly decided, Steve Vladeck

so unless you think that Ex Post Facto laws can be applied against non-citizens outside the U.S., or that Congress can legislate in excess of its Article I powers where non-citizens overseas are concerned, I don’t see how the D.C. Circuit’s view could possibly be correct. This sounds like a hypothetical and academic discussion that has no place in an Article III court, whose jurisdiction is by definition limited to actual cases and controversies. One could easily argue that a non-citizen should not have standing to argue that Congress has exceeded its limited enumerated powers (for example, that the writ has been suspended on a bogus claim of rebellion or insurrection), because that is both a political question/generalized grievance and only citizens (or, say, taxpaying resident aliens with close ties to the nation) have grievances that matter to the polity under any coherent theory of democratic accountability or popular sovereignty. On a higher level, Steve, the argument is simply that Justice Kennedy has gotten the demos wrong — these enemy combatants simply are not a part of the “We the People” whose rights and liberties the Constitution safeguards. As Justice Jackson put it so eloquently, “The Constitution is not a… Read more »

Justice Kennedy Should Be Impeached
Justice Kennedy Should Be Impeached

that begs the question of whether we are sure that the petitioners are who the government says they are in the first place. By assuming the answer to the fundamental question, you sanction a legal regime where there is nothing other than the good graces of the Executive Branch to protect the innocent from the fate of the guilty.

No, it doesn’t. There is a MCA and DTA review system that Congress and the Executive fashioned to adhere to the Supreme Court’s standards of fairness in Hamdi. If you think adhering to precedent is question-begging, then you do not respect the rule of law because you find respect for the rule of law to be illogical. It seems to be the case that you consider foreign enemy combatants on foreign battlefields who kill American civilians abroad to be a part of the “We the People” that the Constitution protects, and, unremarkably, I can find no support for that in any of the Anti-Federalist papers that you cite. So I have no idea what Constitution you pretend to be interpreting, but it isn’t the one our Founding Fathers signed.

Justice Kennedy Should Be Impeached
Justice Kennedy Should Be Impeached

You can’t say, though, that they don’t have a right to habeas corpus because the scheme is accurate and/or fair. That’s a non-sequitur. Apparently, someone didn’t read Chief Justice Roberts’ opinion, which notes: The Court’s second criterion for an adequate substitute is the “power to order the conditional release of an individual unlawfully detained.” Ante, at 50. As the Court basically admits, the DTA can be read to permit the D. C. Circuit to order release in light of our traditional principles of construing statutes to avoid difficult constitutional issues, when reasonably possible. See ante, at 56–57. The Solicitor General concedes that remedial authority of some sort must be implied in the statute, given that the DTA—like the general habeas law itself, see 28 U. S. C. §2243—provides no express remedy of any kind. Brief for Federal Respondents 60–61. The parties agree that at the least, the DTA empowers the D. C. Circuit to remand a prisoner’s case to the CSRT with instructions to perform a new status assessment. Brief for Petitioner Boumediene et al. in No. 06–1195, at 30; Brief for Federal Respondents 60–61. To avoid constitutional infirmity, it is reasonable to imply more, see Ashwander, 297 U. S.,… Read more »

Justice Kennedy Should Be Impeached
Justice Kennedy Should Be Impeached

Wouldn’t that be the very type of judicial lawmaking that is so often derided, particularly by the dissenting Justices here?

No. It is rhetoric spouted by Kennedy to cover up his raw judicial activism. This is literally a case in which the political branches — including Congress — has a viable law, and the Court rejects it in favor of its own ad hoc remedies. If that isn’t legislating from the bench, then nothing is legislating from the bench.

Justice Kennedy Should Be Impeached
Justice Kennedy Should Be Impeached

Second, I don’t have tenure, yet, and I’m out here happily debating with you, so maybe you shouldn’t be quite so scornful.

Sorry. I assumed someone like yourself, with your media profile and so forth, had tenure. No offense intended.

Benjamin Davis
Benjamin Davis

And let us salute the non-tenured ones who commit to these topics and work hard at arguing them. That passion for the law is something of which each of their schools should be proud and something which honors their school’s willingness to support academic freedom.

Best,

Ben