Symbolism Over Substance?

by Michael Newton

I regret that my post is delayed somewhat by travel. I am at present writing from Venice, en route to which I had occasion to do more thinking about the implications of Boumediene than I did for detailed dissection of its precise phraseology. The fortuity of my presence overseas allows me to report the prevailing media spin that Boumediene represents a reestablishment of American law and a repudiation of the U.S. military acting as “jailor, judge, and jury.”

Franklin D. Roosevelt captured the essence of the moral struggle to preserve the American way of life in World War II by telling the nation that “the mighty action we are fighting for cannot be based on a disregard of all things worth fighting for.” The struggle to refine the optimal balance between the president’s duty to “preserve, protect, and defend” the constitution and the executive obligation to protect American lives and property may very well be the most enduring question of our time. At its heart, Boumediene rests on the straightforward legal determination by the Court that the Suspension Clause applies to the detainees in U.S. custody at Guantanamo Bay, followed by the rather predictable conclusion that the circumstances motivating the Congressional deprivation of habeas rights to the detainees did not rise to those specified in the constitution itself. Viewed in the stark terms portrayed in the media, the case can be seen as a validation of essential conditions of human liberty against the exercise of raw governmental power. Given that a president who disagrees with the court’s conclusions has publicly stated that he will nevertheless comply with its opinion, Boumediene does represent all that is best about an America dedicated to law and the preservation of life and liberty.

At the same time, there is a vaguely disquieting dimension to the Boumediene decision. The heart of the majority analysis relies on the assumption that the present system of Combatant Status Review Tribunals combined with the oversight and remedial powers of the D.C. Circuit Court of Appeals is inadequate to protect the essential human liberty of the detainees. The factual record indicates otherwise given that far more detainees have been released from Guantanamo than are currently in custody, and the current procedures provide both for periodic individualized reviews as well as a new CSRT when evidence surfaces that could result in a reversal of a previously determined status. By sheer coincidence, the Secretary of Defense recently ordered a new CSRT for Haji Bismullah on the basis of new evidence that could lead to his release. Because the Secretary’s request rendered the prior CSRT a non-final decision, the Solicitor General subsequently requested that the Court remand Bismullah’s case from its pending decision in Gates v. Bismullah. Although Justice Souter postulates the necessity for the majority opinion on the truism that “some of these petitioners have spent six years behind bars,” the evidence is that the system is indeed working to release those who do not pose a continuing threat to American interests and citizens. Furthermore, the majority establishes constitutional habeas rights, even as it acknowledges that an Article III process will not foreclose further confinement for future petitioners on the sole basis of a hostile status.

I do not believe that the Court intended its Boumediene reasoning to be read as automatically requiring release of any of the present detainees who do represent a continuing threat to the American constitutional order. The decision nevertheless contains the seeds for profoundly troubling extrapolations. For example, if the requirement for a “competent tribunal” found in Article 5 of the Third Geneva Convention is distorted in the future to mean an established Article III court, then the hands of the military would be bound with devastatingly deleterious effects on military operations overseas. The negotiating record for the Geneva Conventions and the official Commentary are both clear that the phrase “competent tribunal” was specifically negotiated to be much more operationally flexible than the preexisting domestic court systems. Boumediene cannot be properly read as applying in the context of an international armed conflict wherein the clear mandates of the Geneva Conventions have been applied.

Finally, while Boumediene is portrayed as somewhat inspiring and idealistic, there is a troubling disconnect in its pragmatic implications. In practical terms the majority candidly admits that its decision “does not address the content of the law that governs petitioners’ detention.” I am struck by the immense disconnect between the moral certainty with which the court creates a substantive right that can be gleaned neither from the law of armed conflict nor from any clear precedent, but at the same time creates such enormous uncertainty and moral confusion. There are more than a few federal judges who are today beginning to ponder some of the following important questions as cases begin to be filed: What are the standards of review? Does the voice of military expertise get ANY deference? Are the previous findings of CSRT panels to be completely discounted as if they were mere martinets in the hands of an overweening chief executive? Can any evidence that would be inadmissible hearsay if a specific petitioner were charged criminally provide the basis for continuing detention? What are the limits of the right to petition the court for witnesses on the petitioners’ behalf? Do the normal CIPA provisions apply [which are quite similar to those used in the military commission proceedings] or will a future Court hold that Boumediene requires some more expansive access for detainees to personally assess and rebut extremely sensitive classified information?

In the end, after the inevitable delays caused by debate, deliberation, and development, I am hopeful that the imprimatur of Article III authority actually provides minimal substantive difference. In that event, federal habeas review will have served to validate the professionalism and patriotism of those who have sacrificed the past six years to protect America while respecting legal norms. Boumediene represents a striking reinforcement of our constitutional separation of powers; I pray that the quest to balance civil liberties does not in the end deprive our citizens of their lives or liberties.

4 Responses

  1. Boumediene cannot be properly read as applying in the context of an international armed conflict wherein the clear mandates of the Geneva Conventions have been applied.

    I recognize that this will appear a bit unsettling but I would like to demur on this point. “wherein the clear mandates of the Geneva Conventions have been applied” in the hands of clever lawyers may lead us back to the arguments of Geneva not applying to the Taliban and the torture that happened in Bagram.

    I am less categoric and have a sense of this decision as being a pragmatic decision which leaves nothing (or at least very little) off the table for the court to look at whether it can do anything about it if a case comes up. This does not mean the court will consider it can act in every setting – obviously it can not. But, the court will look to see if it has the power to act.

    For all the people who have been working the past 7 years to protect me, I thank them. I actually have empathy for the low level persons who did torture on the basis of the “guidance” from the folks up the chain of command even if that guidance has been given in a CYA fashion.

    As to the folks up the chain of command, the higher you go, the colder my blood gets about their role in putting torture in place. They violated the American idea and should be prosecuted. Especially the lawyers who should have known better than that. There is a thing called honor and resignation on principle – even in the 21st century.

    The fatal flaw seems to me in not having kept things simple and deciding to improvise an interrogation practice, a detention regime, and a detention review system.



  2. Further on the reach of Boumediene you could look at the McClatchy series that has come out today that goes right to Bagram on all this. Again, the torture drives the Court reaction. The link is at America’s prison for terrorists often held the wrong men. I say that the Supreme Court might conclude it could reach Bagram which I believe is considered to be within the US territorial jurisdiction under some of the analysis done for purposes of the War Crimes act.



  3. I read Boumediene as falling fairly and squarely within the evolving understanding of habeas protection in the generality of common law jurisdictions – namely that the key issue is whether the jailer or his controlling superior is amenable to the process of the Court. If so, then the supervisory jurisdiction of the Court may be invoked to test the legality of detention.

    Thus in the UK the Courts have held that habeas will run to protect persons in the custody of British Forces but – where a person with dual British-Iraqi citizenship was being interned pursuant to provisions of a UN Mandate providing for internment on national security (of Iraq) grounds with 6 monthly reviews – then the Court would not interfere See

    Al-Jedda, R (on the application of) v Secretary of State for Defence [2006] EWCA Civ 327 (29 March 2006)

  4. Note that in Al-Jedda, the English Court was careful to say that while in lawful administrative detention his other human rights guarantees remained intact – so as to protect him against the kind of abuses documented at Abu Ghraib, Bagram etc.

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