A Second Take on Boumediene: Habeas Corpus and Military Commissions

by Steve Vladeck

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.

http://opiniojuris.org/2008/06/12/a-second-take-on-boumediene-habeas-corpus-and-military-commissions/

23 Responses

  1. 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).

  2. 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).

  3. Humble Law Student — To your first point, this is why Professor Andrew Kent has argued in a law review article that the Suspension Clause has no overseas application. One could argue just as persuasively, though, that the purpose of the Suspension Clause is to displace habeas when there is a domestic emergency threatening the ability of the courts to function. After all, it’s not _just_ “cases of rebellion or invasion,” it’s such cases “where the public safety may require it.” So one could suggest (as I have elsewhere) that it’s just as possible that no overseas event could ever pose the same kind of threat.

    As for your second point, I’m not sure where you get the default proposition from which you suggest the majority departs–i.e., that the President is entitled to deference here. Whether there are some areas of foreign policy into which courts should not intrude, I can’t think of any case involving the detention of individuals that relies on such deference as an argument against judicial review… But even if there were, I think we need to be careful to separate out those things that are part of the President’s “power over foreign affairs” and those things that are in any way “foreign.” The two categories are simply not coextensive…

  4. 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. . .

  5. I don’t see why it’s “a pretty radical conclusion regarding the scope of the writ that is pretty divorced from any historical practice.” 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. Indeed, before September 11, the government had argued that non-citizens overseas have no right to habeas on exactly one occasion–Eisentrager. Had this been such an obvious point, one would’ve expected to see it in Hirota, Yamashita, and a whole host of other cases that the government litigated on the merits. Eisentrager was different, but mostly because of the D.C. Circuit’s limitless decision in the other direction, a point we often forget.

    Let me put it to you this way: Flash back to the ratification debates over the Constitution. You’ll recall, I’m sure, that the big fight between the “Federalists” and the “Anti-Federalists” was over whether the federal government had any implied powers. One of the Anti-Federalists’ chief examples was the Suspension Clause, which they said wouldn’t be necessary unless somewhere else in the Constitution the government was given the power to suspend habeas corpus. The Federalists’ response was that the Suspension Clause was not a limit on power, but a grant–delineating the _only_ circumstances where habeas could be taken away. Although the Anti-Federalists won the “war” on the need for more express limits on governmental powers, they lost this battle–the Federalists convinced everyone, and the states dropped their call for a habeas provision in the Bill of Rights.

    Why bring up all of this? Because I think it illuminates how our thinking today is entirely backwards. The Suspension Clause is all about those extremely limited circumstances during which the government can interfere with habeas corpus. The necessarily implication is that it’s otherwise available in all other cases. You can call this “radical” as many times as you’d like, but I think it’s equally radical to suggest that there might be places where the federal government’s power is unbounded and not subject to judicial review. Not even Alexander Hamilton would ever dare have dreamed up such an argument…

  6. 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.

  7. 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 the military commander in foreign territory broad powers to detain not only actual enemy fighters, but accompanying civilians and generally anyone they consider to pose a security threat. These folks can be granted all the court appearances in the world, but are unlikely to find a judge willing to order them released because unlike the American at home, there is a sound legal foundation for their detention.

    The situation at GTMO is unprecedented in that the U.S. has never articulated a sound legal basis for the detentions grounded in the law of war (beyond the most general assertions of blanket authority) and there are serious factual questions about whether many of the detainees actually qualify for preventive detention under any criteria. So this whole situation is truly sui generis.

  8. 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.

  9. Why is it a critique of Kennedy’s opinion that it could, in some cases, give more habeas rights to non-citizens than to insurrecting or rebelling citizens? A non-citizen often has more rights than a citizen, as, for example, where the citizen is a felon…

    Again, to be clear, the point is that the substantive conditions in which habeas can be suspended is less about the detainees than it is about the courts. Surely, there could be situations where domestic emergencies also precluded access to the writ for _anyone_ (citizens or not) overseas, but I don’t see how the Suspension Clause just could not “apply.” Can Congress pass ex post facto laws against non-citizens outside the U.S.? Can Congress regulate in excess of the limitations contained in Article I, Section 8, if a non-citizen outside the U.S. is concerned? And what about citizens? Isn’t it at least as “illogical” to read the Suspension Clause as protecting habeas for citizens overseas but not non-citizens?

  10. 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.

  11. 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…

  12. 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.

  13. I’m not sure what Anon’s point was, but I think the larger point here is that there’s something odd about suggesting that a limit on governmental power that was vital to the Anti-Federalists might have entire areas where it doesn’t apply. If one truly believes that the federal government is one whose powers are carefully circumscribed by the Constitution, I just find it incredibly hard to see how there could be an area where the Constitution doesn’t “apply.” I always thought the more convincing argument was that the Constitution _applies_ everywhere, but the scope of its provisions conferring individual rights, e.g., Fourth Amendment; Fifth Amendment, vary with the circumstances… the Suspension Clause, though, is more like the other limits on government power in Art. I, section 9… 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.

  14. 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 – between the expressions of the jurisdiction to adjudicate and the constitutional judicial power as sought to be applied.

    Boumedienne then appears in this area as a reactionary rather than an overreaching decision. It is a reassertion of a space for the judicial power that may be more in line with that of other judicial power as manifested in democratic states – a move more toward a norm of democratic states as to the jurisdiction to adjudicate.

    Not clearly a theory but an idea that struck me.

    Best,

    Ben

  15. 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 suicide pact.” Now, as a law professor, you are free to argue whatever you want — we have a First Amendment, after all — but your views are clearly erroneous.

  16. Well, I guess this is a good example of an ipse dixit, if nothing else. My views are “clearly erroneous,” as I understand your point, because someone who is labeled an “enemy combatant” by the U.S. government is “not a part of ‘We the People.’” What if you were so labeled? What if I was? What if the government, acting in the best of intentions, simply made a mistake?

    The historic office of habeas corpus is to allow someone to go before a judge and say that they can’t be detained, whether because Congress didn’t authorize it, or, as ultimately more relevant here, because Congress didn’t authorize detaining _them_. Even if you believe, as many reasonable people do, that those who _are_ affiliated with al Qaeda and other int’l terrorist groups have no rights, and should be subjected only to the most summary and deferential process, 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. I always understood our Constitution to (wisely) vest that tremendous responsibility, ultimately, in the hands of Article III judges.

  17. 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.

  18. You’re conflating two different arguments. Either you believe that these guys don’t have a right to habeas corpus, in which case it shouldn’t _matter_ whether the DTA/MCA review scheme is accurate and/or fair, or you believe that the DTA/MCA review scheme is accurate and/or fair, so it shouldn’t matter whether or not these guys have a right to habeas corpus. 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.

    It strikes me that Kennedy’s argument for why the DTA/MCA review scheme is insufficient is pretty convincing — if you cannot present relevant exculpatory evidence, how can you meaningfully challenge the legality of your detention? And so, it seems that your real beef with Kennedy’s opinion is in it saying that the detainees have a right to habeas corpus. Repeating your early hyperbole, you assert that “foreign enemy combatants on foreign battlefields who kill American civilians abroad” are not a part of “We the People.” Even assuming that, how can you be sure that the petitioners in these cases so qualify? Indeed, a whole bunch of these guys were not picked up anywhere near a battlefield, and the allegations against them do _not_ include charges that they killed anyone, let alone U.S. civilians.

    Again, you cannot just assert that these guys are bad guys. How can we be sure? I’d like to believe that anyone the government points to as a bad guy is just that, but don’t we know better? Especially in the context of non-battlefield captures, it strikes me that the purpose of meaningful process is to separate out those who should be held responsible from those who were just in the wrong place at the wrong time. Ridicule it all you want; use as much hyperbole as you want; but at the end of the day, as Frankfurter wrote, “the history of liberty has largely been the history of observance of procedural safeguards.”

    Finally, you keep suggesting that Kennedy should be “impeached.” Should any Justice, whenever they render a decision with which you disagree?

  19. 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., at 348 (Brandeis, 24 BOUMEDIENE v. BUSH ROBERTS, C. J., dissenting J., concurring) (“When the validity of an act of the Congress is drawn in question . . . it is a cardinal principle that this Court will . . . ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided” (internal quotation marks omitted)); see also St. Cyr, 533 U. S., at 299–300, especially in view of the Solicitor General’s concession at oral argument and in his Supplemental Brief that authority to release might be read in the statute, see Tr. of Oral Arg. 37; Supplemental Brief for Federal Respondents 9. The Court grudgingly suggests that “Congress’ silence on the question of remedies suggests acquiescence to any constitutionally required remedy.” Ante, at 58. But the argument in favor of statutorily authorized release is stronger than that. The DTA’s parallels to 28 U. S. C. §2243 on this score are noteworthy. By way of remedy, the general federal habeas statute provides only that the court, having heard and determined the facts, shall “dispose of the matter as law and justice require.” Ibid. We have long held, and no party here disputes, that this includes the power to order release. See Wilkinson v. Dotson, 544 U. S. 74, 79 (2005) (“[T]he writ’s history makes clear that it traditionally has been accepted as the specific instrument to obtain release from [unlawful] confinement” (internal quotation marks omitted)). The DTA can be similarly read. Because Congress substituted DTA review for habeas corpus and because the “unique purpose” of the writ is “to release the applicant . . . from unlawful confinement,” Allen v. McCurry, 449 U. S. 90, 98, n. 12 (1980), DTA §1005(e)(2) can and should be read to confer on the Court of Appeals the authority to order release in appropriate circumstances. Section 1005(e)(2)(D) plainly contemplates release, addressing the effect “release of [an] alien from the custody of the Department of Defense” will have on the jurisdiction of the court. 119 Stat. 2742–2743. This reading avoids Cite as: 553 U. S. ____ (2008) 25 ROBERTS, C. J., dissenting serious constitutional difficulty and is consistent with the text of the statute. The D. C. Circuit can thus order release, the CSRTs can order release, and the head of the Administrative Review Boards can, at the recommendation of those panels, order release. These multiple release provisions within the DTA system more than satisfy the majority’s requirement that any tribunal substituting for a habeas court have the authority to release the prisoner.

    It seems, Professor Vladeck, that you are fighting with Scalia’s dissent, which you have taken me to have endorsed, while ignoring Roberts’ dissent, which I actually find convincing. So why don’t you grapple with the SUBSTANCE of the Chief Justice’s dissent instead of heaping hatred on Scalia? Because you have no argument. And a decision backed by no argument, in my mind, is reason for impeachment. Justices, unlike professors, have no tenure.

  20. First, there’s a rather significant difference between an argument that fails to convince and no argument whatsoever.

    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.

    Third, I’m quite familiar with the Chief Justice’s dissent as well. Indeed, I have a forthcoming article (that was almost to press before Boumediene) that tries to get at the question of what an “adequate” alternative remedy would be.

    I agree that the Chief Justice correctly summarizes things the Court _could_ do to save the statute. But what of Kennedy’s point that reading all of these powers into the DTA/MCA would frustrate congressional intent? (E.g., bottom of page 58: “We cannot ignore the text and purpose

    of a statute in order to save it.”). Wouldn’t that be the very type of judicial lawmaking that is so often derided, particularly by the dissenting Justices here?

    Ultimately, I think this is the hardest part of the case–whether the DTA/MCA provide an adequate alternative remedy. But there comes a point where reading all of this stuff into the statute risks exactly what the dissents accused the majority of–usurping the judicial power. If it is crystal clear that Congress did not _mean_ to allow the D.C. Circuit to exercise such powers, if the government has continued to argue against the exercise of such powers in Bismullah, and if the statute itself does not readily admit of allowing such powers, I can’t see why Kennedy is so wrong here…

  21. 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.

  22. 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.

  23. 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

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