12 Jun 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:
- Non-citizens detained at Guantánamo challenging their detention.
- Non-citizens detained at Guantánamo challenging their pending trial by military commission.
- Non-citizens detained elsewhere outside the United States.
- 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.