The Importance of Boumediene

by Eric Freedman

Having consistently benefitted from the high level of dialogue on this site, and conscious that it inhabits a scholarly field in which I do not specialize, I particularly appreciate the invitation to post a response to the Boumediene decision here.

Of course, the ruling raises numerous legal, historical, and practical points that will be the subject of hundreds of thousands of words of commentary in the days and years to come, but I hope that those do not have the effect of obscuring in a welter of detail the truly profound importance of what happened in Washington yesterday morning.

Let me start by pasting in, unedited, a comment posted about the case to the website of the Times of London:

USA has always been a great country, if not the best, this desicion prove it, once again the American democracy, constitution and division of power prove to be the most eficient way of soceity in the world. this is a grreat day for America, and the begining of the healing of this country.

Ernesto, Caracas, Venezuela

Ernesto here makes tersely the two points that I will make only a bit less tersely.


A. In terms of American constitutional law, this decision ranks in the top five of all time. It will in the future appear in constitutional law casebooks right after Marbury v. Madison and right before the Steel Seizure case. Why? Because it implements the structural thinking that permeates the Federalist.

What the Convention’s Rube Goldberg creation was supposed to achieve, somehow, was to constrain government power whether in the hands of an aroused public (forestalling the excesses of democracy) or of a single individual (whether King or President because, whether that person’s motivations were good or ill or views wise or foolish, the public had the right to set policy) while at the same time getting the needed work of government done.

So we got both:
– checks and balances, dividing power between the branches and then setting them against each other so as to prevent potentially tyrannical concentrations of power, and
– separation of powers, attempting to see to it that governmental tasks (e.g. raising taxes, impeaching the President) would be carried out by the organ(s) of government that could perform them best in light of what we were trying to achieve in the first place: representative non-tyrannical government.

B. In that context, whether an individual should or should not be imprisoned is not in any sense a political question. It is a judicial question. If the executive branch believes that an individual should be incarcerated, it has the burden of persuading neutral adjudicator (a judge, chosen jointly by the an executive-legislative process) of the legal and factual correctness of its view.

Leaving habeas corpus entirely aside, this thinking explains why repudiating the English model impeachment of public officials by the legislature extends no farther than removal from office and is not a criminal conviction, and why private citizens may not be subject to bills of attainders (legislative acts, signed by the executive, convicting individuals of crimes).

C. These are the basic structural premises of the ruling yesterday, and why my paragraph 1(A) above reads as it does.


The ruling yesterday is the best possible thing that could have happened for the position of the United States in the world, and specifically for its efforts to defeat terrorism.

That is a struggle that simply will not be won exclusively, or even primarily, by military means nor yet by economic ones. Leaving idealistic concerns entirely aside, this country simply lacks sufficient resources in either area.

To defeat ideologies opposed to ours we will have to win the hearts and minds of people around the world. That requires demonstrating in deed adherence to our professed ideals, sometimes paying a short-term practical price (just as we do when a guilty person is acquitted in the criminal justice system) in order to preserve what is in fact America’s greatest strength: the moral force that comes from being an example to the world, a country that others justifiably want to emulate, one confident enough in its own values that its President wears his amenability to the rule of law as what I have called “a republican crown” rather than casting it aside in times of stress.

If a young person living in an authoritarian nation who is asked to compare the behavior of her government in addressing perceived security threats with that of ours answers*accurately and tragically*that there is not much difference, the future of the American empire is dim at best.

Ernesto’s comment on Boumediene with which I began this post encapsulates, I hope, its significance as a burst of sunshine onto this landscape.

The United States and the world have had a very good day.

8 Responses

  1. This is a great post — though I could have said that about each one of the symposium contributions. This is a really valuable service to those of us who are interested in the field.

    One hedge, and then a question. The hedge concerns your judgment that this is one of the top five U.S. constitutional decisions of all time(!) My inexpert guess is that this very much remains to be seen — there’s lots this decision doesn’t reach, like the standards that get applied on habeas, or the military commission proceedings — and I’ve seen lots of decisions celebrated even though later events or cases diminish or overshadow them. I read you to be saying that this rank is attained in part because of the quality of the Court’s performance, not just because of the decision’s impact, and I would have to study it more carefully before getting there — and try to figure out how much of the situation being remedied was due to the Court’s prior decisions, too.

    Separately, you say “The ruling yesterday is the best possible thing that could have happened for the position of the United States in the world, and specifically for its efforts to defeat terrorism.” I assume by this you mean given the fact that the Court was going to reach a decision in this case, and putting aside the prospect that it was going to do something more far-reaching, like declaring the appropriate standard to be applied on habeas.

    Still, that’s a provocative claim. What about as against an about-face by Congress and the President to the same or similar ends? Another foreign observer (Enrico II) might react to the Court’s decision by thinking, “Well, this just shows how both the US political branches blithely violate the Constitution; nice to hear that the courts step in, six or so years later, but we’ll see whether they ride herd after this. Congress and the President still have it in for civil liberties — even the USA’s own courts say so — so this vindicates my suspicions rather than reassuring me.” Put better, of course. Even Enrico I might also be crestfallen to hear later on that Guantanamo hasn’t automatically been shuttered, that trials by military commission continued, and so forth. My own sense is that the decision will generate a lot of good will, as you say, but it may be brief . . . because much of that is predicated on an exaggeration of the decision and an understandable simplification by the media. I’d bet there’s been a similar pattern of reaction to incremental changes in the death penalty. But I hope I’m wrong, from a PR standpoint.

    Of course, if you follow me that far, one has to confront the old question of a tradeoff between judicial intervention and political intervention, but there I wouldn’t have been too optimistic as to the political prospects.

    Again, thanks for the post.

  2. Freedman’s fatuous analysis romanticizes the role of the Court and fails to engage the realities of extending habeas protection to those dedicated to the destruction of rational, Western systems like ours. By the “rest of the world”, Freedman undoubtedly means European elites who blanch reflexively at any exercise of American power (unless it is used to liberate them.) For millions of Muslims, our willingness to treat jihadis as the equivalent of the US citizens they seek to murder is a sign of abject weakness. Winning these hearts and minds requires an ability to project strength judiciously but firmly. (To quote Osama bin Laden “The people follow the strong horse.”)

    In any event, such cultural and political considerations should have no bearing on a Supreme Court decision.

  3. 1. DR:

    In 1607, a group of religious fanatics (Catholics) with links to a foreign power (Spain) planted 39 barrels of gunpowder under the Houses of Parliament, set to go off on opening day – which would have vaporized the Parliament and Royal family.

    The government reacted by torturing and wrongly executing scores of innocent people.

    This episode, well-known to the Founders, was one of a number of motivations for putting legal constraints enforcible through courts on the unilateral determinations of Kings (like Charles I, who lost his head) to imprison people and lay in the background of the English habeas corpus statutes that were in effect throughout America for a century and a half before Independence and the adoption of a Constitution with its guarantee against suspension of the writ.

    So we are not dealing here with a new problem, as the Court recognized and some of the historian commentators to this discussion are describing in more detail.

    We are instead, as I said in my original post, dealing with the exact issues of constraining government power while allowing government to function that were dealt with when the system was designed.

    The Boumediene decision resolves those issues precisely the way the framers did.


    Thank you for your kind words.

    Decisions can be great because of the vision behind them even if their on-the ground impact is mixed and even if people can quibble over particular passages. Brown v. Board of Education is a prime example. And that one also did us enormous good in the Cold War.

    Of course, the political branches could now blunt the PR benefits by seeking to overturn the ruling, but that would be legally and politically difficult.

    Legally, they would either have to try to create something that was the “substantial equivalent of habeas,” which under yesterday’s ruling is effectively going to have to _be_ habeas, or to suspend the writ, which would be a huge propaganda victory for our adversaries and which no one has proposed. (Sen. Graham today has been talking about a constitutional amendment).

    Politically, Obama voted against this act, supports restoration of habeas, and praised the decision. So the Democrats in control of both Houses would have to pass legislation opposed by their nominee.

    By the time Congress comes back in January, regardless of who has won the election, there is every prospect that habeas proceedings will have gone forward, the sky will not have fallen, and there will be no reason for legislation.

    I believe therefore that in both of the respects I identified in my post the advances the country made yesterday will stick.


  4. This was a horrible opinion, contrary to precedent, the plain language and import of Eisentrager, and verges on fabricating a rationale made from whole-cloth to distinguish Guantanamo’s “de facto” sovereignty from de jure sovereignty, which apparently is enough to implicate the Suspension Clause.

    The fact that you like the result – a silly result which would have, as a consequence, given German or Japanese enemy combatants access to the federal courts in WWII as long as they denied being combatants and were detained in a place under de facto U.S. control – doesn’t change the illogic of the decision.

  5. And what’s the test for “de facto” U.S. territorial sovereignty? This novel distinction is a cute invention by Kennedy, but he provides zero guidance on how it would actually work — again, typical of Kennedy. All high-sounding sentiment but not much legal substance; not unlike this blog post.

    Also, are federal judges to make factual determinations of “de facto” sovereignty from an inchoate intuition of Kennedy’s? AMK’s belief that federal courts should function as factfinders on enemy captures happening an ocean away on a different continent is similarly hubristic.

    If the U.S. actually fights a large scale war in future, you’ll regret this decision mightily.

  6. I loved this part from Freedman,

    To defeat ideologies opposed to ours we will have to win the hearts and minds of people around the world


    Yah, we often win hearts and minds by pounding them to dust under our bombs and tanks. See WW1, WW2, Civil War

  7. But Pew polls already clearly show a wilting of the terrorist mindset in the Muslim world. Meaning that American policy one way or another is already effective — Guantanamo and all. So the premise of this entire post is bunk to begin with.

    Maudlin overcelebration tends to be disengaged from reality; and this is one of those times.

  8. un, HLS:

    You might want to take a look at


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