Three Reflections on Boumediene

I have three levels of comments:

1. History. Although Kennedy’s opinion spent a lot of time with the history of habeas, it drew only two conclusions with much bite.The first is that the Suspension Clause was passed before the Bill of Rights, so one could argue that the right to challenge one’s detention before a court or a judge was treated as the only right sufficiently important to put in the original Constitution. That view makes protection for the “great writ” more important, in the view of the framers, than “due process of law” or protection for “speech,” or self-incrimination, or trial by jury. Of course one could also argue that the decision not to include a Bill of Rights was not a judgment about the importance of the rights, and if so, the content of the rights subsequently enumerated gives testimony to their importance. Still, it gives one pause to recall that the only procedural “right” detailed in the original document is the “privilege of the writ of habeas corpus.” The second historical conclusion is that the writ ran with the king’s dominions. The fact that habeas was available to the “king’s subjects” in India and America, which included members of non-English populations and resident aliens, makes it easier to suggest that extending habeas protection to aliens in Guantanamo isn’t completely at odds with the “original meaning” of the Suspension Clause. At some point there seems to be something of a historical dispute between Kennedy and Scalia on the scope of habeas jurisdiction, but I read Scalia only to be saying that no historical authority has suggested that if an alien is arrested and detained by a “King’s officer” (say, a person in the service of the US armed forces) in a foreign theater of operations, habeas jurisdiction would be concurred. Scalia doesn’t agree that Guantanamo is US territory for the purpose of habeas jurisdiction, but he lost on that issue. So being detained in Guantanamo is different, after Boumediene, from being detained in an Iraqi jail, by Iraqi authorities, at the request of the US.

2. Separation of Powers. I find myself unsympathetic to Roberts’s arguments about judicial triumphalism and the exhaustion of other remedies. The original purpose of the habeas writ was to test the legality of executive detentions. The concern, at a time when religious and political conflict were closely associated, was with executive officials, ostensibly acting under the name of the king, holding people in custody because of the unpopularity of their religious views. The theory of the habeas writ was that the king would be embarrassed by that conduct, and would thus exert his grace and mercy (the writ is a royal prerogative writ) on behalf of his subjects to ensure that his courts (the original judges hearing habeas cases were King’s Bench judges) tested the actions of his officials. So if the point of habeas to ensure the sufficiency of evidence on which a person is incarcerated, the idea that Congress and the Executive should presumptively be deferred to when they seek to limit the access of incarcerated persons to the courts seems quite out of place. Judges are the enforcers of habeas, and they, not the other branches, should determine its scope. As for exhaustion, if it were the case that the Combatant Status Review Tribunals were just being formed, and at least in theory detainees, represented by military counsel, would have opportunity to challenge the evidence against them and otherwise test the sufficiency of their detentions, one might be inclined to encourage their use. But that is not how the CSRTs work, at least for prospective ‘enemy combatants’ since 9/11. Someone is arrested in Afghanistan or elsewhere, either in actual military operations or in some counter-terrorist context; the person is brought up before a CSRT and characterized as an ‘enemy combatant’ by a member of the military; some evidence is produced; the tribunal designates the person an ‘enemy combatant’; the person is detained, and, before Boumediene, at the pleasure of the military. In that context I am not sure what “adminstrative remedies” there are to exhaust. The very fact that both the Congressional statutes withdrawing jurisdiction from the federal courts were comparatively uncontroversial when they were passed, and the executive was given a great deal of deference on “war on terror” issues for at least five years after 9/11, suggests that Congress and the executive are not inclined to be overly scrupulous about the rights of persons they think are threatening national security in a direct way. One wonders whether Roberts would be equally inclined to be deferential to the executive and Congress if, as was the case in the early 1950s, both were inclined to support the forcible segregation of African-Americans and whites.

3. Practical Application. I suspect that Boumediene may be one of those cases whose aspirational reach and impact turns out to be far greater than its practical effects. It is possible, as some commentators have suggested, that the logic of Boumediene is that anywhere in the world where the United States has de facto sovereignty, a detainee–citizen or alien–may have habeas access to a civil court to challenge the sufficiency of the detention. Under this reading Guantanamo would not be a “quirky” jurisdiction, as Roberts suggests, but a precedent for the proposition that when officials of the United States government exercise custody over a person in a place where the United States government has the equivalent of sovereign authority (a military base, a military prison in an “occupied” territory), that person should be able to challenge custody through a habeas petition. Put that way, Boumediene embodies the principle that when officials of the United States are incarcerating someone in territory controlled by the United States, civil courts of the United States are available for habeas relief. That would be consistent with our aspirations for the “rule of law.” But none of this is to say that many detainees would be advantaged by the ability to swear out habeas writs. At least not many detainees of the sort that have ended up in Guantanamo or the CIA’s facilities. Recall that the standard of review, on a habeas petition, is whether the evidence suggests that the prisoner was appropriately detained as falling into one or another category of persons eligible for detention. When a person is arrested in a military theater of operations, or in some sort of counter-terrorist operation, that evidence is difficult to counter. Virtually every prisoner in the American penal system is eligible of habeas relief. One doesn’t seem a constant stream of such persons being released because they successfully challenged the basis of their detention. The very fact that after Boumediene there is some risk that the federal courts might be clogged with habeas petitions by ‘enemy combatant’ detainees suggests that a comparatively swift way of disposing of most of the challenges will be developed. Indeed, one might be inclined to think that the only beneficiaries of Boumediene are likely to be persons who can show, with some clarity, that their detentions were dubious in the first place.