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.

Boumediene and Choice of Law

by Beth Van Schaack

As others have noted, the Supreme Court left open a number of pressing questions in its Boumediene opinion. Most intriguing from my perspective is the choice of law issue addressed to the question of which body (or bodies) of law will apply to determine the lawfulness of the detainees’ detentions in the forthcoming habeas proceedings. To this issue, the Court merely noted that: “It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined” (p. 69).

The question of which law governs is not an obvious one. In all cases, of course, U.S. law will govern the question of when and how an individual may be detained by U.S. government agents. In certain cases, however, international law speaks to the same question.

International humanitarian law (IHL) in particular is relevant to those individuals detained while participating in hostilities in Afghanistan prior to the establishment of a new government there (i.e., between October 7, 2001, and June 19, 2002). During this time, the conflict in Afghanistan was an “international armed conflict” within the meaning of Article 2 of the 1940 Geneva Conventions. (According to that provision, the Conventions “apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”). By contrast, individuals detained after June 19, 2002—when the conflict in Afghanistan was no longer an “international armed conflict” as defined by IHL—are only subject to the IHL governing non-international armed conflicts. (From that date onward, the conflict was no longer between High Contracting Parties; although multiple High Contracting Parties remain involved in the conflict, they are aligned on the same side). Individuals detained outside of the theater of war, like the Boumediene petitioners who were detained in Bosnia-Herzegovina, likely fall outside of IHL altogether.

All of these individuals are presumptively protected by human rights law, which applies in times of peace and war. Article 9(1) of the International Covenant on Civil and Political Rights states: “No one shall be subjected to arbitrary arrest or detention.” The precise relationship between IHL and human rights law remains inchoate, although it is clear that in situations of armed conflict, both bodies of law will apply in a complementary fashion. For example, IHL as the lex specialis can add content to the determination when a detention is “arbitrary” within the meaning of human rights law.

This leads to the question of what substantive standards govern the legality of the detention of individuals under these various bodies of international law, assuming they apply. Under IHL, the specific rules applying to individual detainees depend upon conflict classification, the relationship of such individuals to the conflict, and the circumstances of their capture. In particular, in international armed conflicts, there are regimes for interning prisoners of war as a matter of course and for interning aliens in the territory of the Detaining Power or in occupied territory who present security risks.

By contrast, the rules governing non-international armed conflicts do not create a specific regime for the detention of individuals. Thus, the procedures applicable to their detention are governed by domestic criminal law as tempered by relevant provisions of international human rights law. The International Covenant on Civil and Political Rights, while setting forth a general prohibition against arbitrary detention and a right to habeas corpus, does not provide much in the way of substantive standards to determine when a detention is arbitrary. Clearly detentions not in accordance with procedures established by law would qualify (Art. 9(1)).

This choice of law question will also force the lower courts to confront §5 of the Military Commission Act, assuming it applies to pending cases. This provision states:

No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.

Strong arguments exist that this clause—if it indeed applies to situations in which detainees are contesting the validity of their detentions—violates fundamental separation of powers principles by constraining the sources of law and rules of decision courts can invoke in deciding matters before them, as convincingly advanced by our colleague Steve Vladeck in his amicus brief in the cases.

Three Reflections on Boumediene

by G. Edward White

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.

Boumediene and the Use of History; Boumediene & Munaf

by Andrew Kent

Thanks to Opinio Juris for inviting me back. These things are always fun. I’m not going to try to systematically address Boumediene, but will instead offer a few thoughts about Boumediene‘s use of history and the relationship between Boumediene and Munaf.

1. I agree with much of the Chief’s and Scalia’s criticisms of the Boumediene majority opinion’s aggressive assertions of judicial supremacy over detention decisions in the war on terror. But it cannot be accidental that the Court chose to release Munaf v. Geren on the same day. And if Boumediene is a green light for lower federal courts to exercise substantial control over the military’s legal proceedings regarding captured enemies, Munaf is a red—or at least yellow—light. There the Court goes out of its way to emphasize that the relief ordered by the lower court against the U.S. military was wholly inappropriate and that courts should careful to avoid “unwarranted judicial intrusion into the Executive’s ability to conduct military operations abroad” (slip op. 22). I hope Munaf’s cautions will be noted by lower court judges.

2. Although not implicated directly in either case, I bet the Geneva Conventions played an important behind-the-scenes role in today’s decisions. The Executive has of course long taken the position that alleged members or associates of al Qaeda or the Taliban captured in Afghanistan or elsewhere are not covered by the Geneva Conventions, but that all persons detained in Iraq are. Though in 2004 Hamdan held that Common Article 3 protects al Qaeda etc. personnel, that provision is merely a floor to outlaw the worst kind of misconduct by U.S. personnel. So generally speaking, Iraq conflict detainees have pretty comprehensive legal protections under Geneva (and Iraqi law, where applicable), whereas Guantanamo detainees have been perceived to be in a “legal black hole,” to use the popular metaphor.

My sense is that at least three justices (Kennedy, Souter and Ginsburg) simply think it is unacceptable for persons in U.S. detention to be held outside the protections of either the Constitution or a robust international legal regime like Geneva. Recall that Hamdi’s plurality pointed to Army regs implementing Geneva procedures as an example of acceptable due process. And Boumediene suggests that constitutional habeas may be unavailable for some foreigners held abroad if “there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power” (slip op. 65). This seems likely to be a reference to Geneva. Munaf’s unanimous deference to the Executive could well be motivated in part by the comfort the Court draws from the presence of Geneva in Iraq.

Back in the black hole, the government was essentially informed today that procedures and standards devised by the Executive or Congress for Guantanamo will never pass muster with this Court unless Article III courts are involved and able to enforce the Constitution. Rasul, Hamdi and Hamdan invited the President and Congress to create the kind of “non-constitutional” and “non-habeas” framework that Boumediene finds clearly unconstitutional. This is bad news for the advocates (e.g., Jack Goldsmith, Ben Wittes, Neal Katyal) of creative statutory detention and review procedures more appropriate for the novel circumstances of the war on terror.

In light of the significant losses the Executive has suffered in the Court in Guantanamo cases (Hamdi, Hamdan and now Boumediene), as well as the awful prisoner abuse and the diplomatic and public relations disasters, and one wonders whether even the Executive might now think we would have been better off maintaining from the outset that Geneva did not apply to al Qaeda etc. personnel, but that it would be applied anyway as a matter of humanity and good policy.

3. Judges and lawyers are often cautioned that they misunderstand and misuse history when they try to force it to decisively answer current legal problems. According to historian Jack Rakove: “Professional historians should have no problem in admitting ambiguity or uncertainty in our findings, but political and legal disputes leave little room for scholarly hemming and hawing.” Here’s historian Michael Bellesiles: Unlike advocates arguing for a client or judges justifying a decision, “[h]istorians doubt any case for which all the evidence falls consistently on one side and work on the assumption that the past is pitted with ambiguities and paradoxes.” The criticisms of lawyers and judges often seem apt. (I know that I—lacking a graduate degree in history—live in fear that I am getting my history wrong in some way. And I probably am.)

The Boumediene majority opinion appears to handle the complexities of constitutional history and its application to current disputes in a way that should please most historians. The historical question is whether, as of 1789 when the U.S. Constitution went into effect, aliens could have used the common law writ of habeas corpus to challenge in civilian courts on the mainland their detention as combatants by the military in a location under the de facto control but not de jure sovereignty of our country. The Boumediene majority considers the historical evidence but carefully and modestly declines to draw any firm conclusions because the evidence is ambiguous and incomplete and our eighteenth century predecessors did not leave record of having confronted and resolved the precise issues we face today. I have previously concluded much the same thing about the historical evidence, in a 2007 law review article and post for the Opinio Juris symposium about the D.C. Circuit decision in Boumediene.

Before today, the Court had a very different view. The five justice majority in Rasul v. Bush (2004) reviewed English habeas history and concluded that: “Application of the habeas statute to persons detained at the [Guantanamo Bay military] base is consistent with the historical reach of the writ of habeas corpus. . . . In the end, the answer to the question presented is clear.”

But as a detailed and erudite recent article on this topic by Professors Paul Halliday and G. Edward White (cited by the Boumediene majority) notes, “[t]he historical underpinnings of Stevens’ analysis [in Rasul] were slight” (p. 116 of the SSRN version). And lo and behold, the Court has recognized and corrected its error. In Boumediene, all nine justices reject the faulty historical analysis in Rasul. The Boumediene majority opinion correctly notes that the history of the writ provides “no certain conclusions” (slip op. 16). The Court finds “little” historical “support” for the claim that common law courts sitting in England prior to 1789 entertained “petitions brought by alien prisoners detained abroad” (slip op. 18-19). In fact, the Court notes, there is a “lack of historical evidence on point” (slip op. 22). All five justices in the majority signed on the opinion—and these statements—in full. Souter notes in his somewhat odd concurrence that he “join[s] the Court’s opinion in its entirety.” The four justices in dissent reject Rasul’s analysis and conclusions and instead find that the available evidence points the other way. I think they go too far by finding a clear answer, but their historical argument is, in my view, stronger than the Rasul majority’s.

By contrast with the Court’s approach today, the Brief of Legal Historians as Amici Curiae submitted in Boumediene argued that the “Court’s conclusion in Rasul is fully supported by the historical record.” Given his vote in Boumediene, not even Justice Stevens, the author of the Rasul majority opinion, appears to believe that anymore. The amici legal historians also wrote that “prisoners of war and alleged enemy aliens could challenge the legality of their detention by way of habeas corpus. Even where in these cases courts ultimately declined to discharge the petitioner, they reviewed the basis of the prisoners’ detention on the merits.” The Boumediene majority correctly notes that whether the key cases’ holdings “were jurisdictional or based upon the courts’ ruling that the petitioners were detained unlawfully as prisoners of war is unclear” (slip op. 17).

Rather than attempt to answer a momentous question of U.S. constitutional law based on an ambiguous and incomplete historical record, the Court today quite properly turns to other sources of constitutional meaning, namely text, structure, the Court’s precedent and functional, consequential and prudential considerations. Well done.

Methodologically, that is. On the substance of many issues, the Court is shaky. It badly misreads key precedents (Johnson v. Eisentrager, Balzac v. Porto Rico). It somehow convinces itself that “separation of powers” principles written by the Founders into the Constitution positively require that the federal judiciary have the final say about the legality of all executive detentions, even those occurring during wartime outside of the United States and involving noncitizens. It utterly fails to answer the Chief’s fairly devastating dissent. I am still fond of my textual-structural approach to the territorial scope of the Suspension Clause (in the article and post linked to above), but will not reprise it a third time here.

Notwithstanding these and other disagreements, I applaud the Court’s new-found methodological caution regarding the use of history.

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.

Primer on Boumediene

by Roger Alford

Beth Van Schaack has a really nice primer on Boumediene available here. She will join us at Opinio Juris for more detailed discussion and analysis of the opinion shortly.

Good Day in Gitmo, Bad Day in Iraq

by Deborah Pearlstein

While there’s much, much more to be said on the Supreme Court’s blockbuster decision today in Boumediene, the not-quite-companion case involving U.S. citizens held by the Americans in Iraq also came down today—and the news there is hardly pro-detainee.

In a unanimous decision, the court ruled that while the U.S. federal courts have jurisdiction to hear the habeas petitions of Munaf and Omar (the U.S. citizen detainees), Munaf and Omar would lose on the merits of their habeas claims—and there’s therefore no justification for blocking their transfer to the Iraqi authorities for criminal prosecution.

The detainees’ key claim was that they were likely to face torture if transferred to the Iraqis for prosecution. The court concludes that this claim is “of concern,” but that it is primarily up to Congress and the executive to determine how to handle it. Since the State Department has determined here that the Iraqi detention facilities are good enough, the court decides it is in no position to challenge that determination.

Souter, Ginsburg, and Breyer concur separately in an attempt to limit the scope of the decision—emphasizing that the court is reserving judgment on whether the outcome would be the same in the “extreme case in which the Executive has determined that a detainee [in U.S. custody] is likely to be tortured but decides to transfer him anyway.” But given the briefing the court had before it in this case, including this amicus brief detailing all the reasons why torture was likely in this case, it’s a little hard to imagine just what kind of exceptional circumstances they have in mind. Among other things, the same State Department had said in its most recent country report that Iraqi jails have “significant human rights problems,” including “torture and other cruel, inhuman, or degrading punishment” and “[a]busive interrogation practices” including “rape, torture and abuse, sometimes leading to death.”

I’m not sure which is more remarkable about the decision—the fact that it was unanimous or the fact that the court decided to reach the merits of the habeas claims that the men were being held in violation of their rights under U.S. law. I’ll say it was the decision to reach out and decide the merits—of a piece, one might note, with Justice Kennedy’s paean to the role of the federal courts in such matters in Boumediene itself: “Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury.” Read: We’ve been holding back. We’re no longer so inclined.

[Cross-posted at Convictions]

What Difference Does Citizenship Make? Even Less, After Boumediene

by Peter Spiro

Roger points to the importance of territory in marking the boundaries of citizenship. The other key element in constitutional cartography has been citizenship status, at least since Reid v. Covert. When it comes to enjoying the protection of the Constitution abroad, as a general matter citizens get it, noncitizens don’t.

Justice Kennedy’s opinion in Boumediene appears to slice at that in both directions. First, he plays up the fact that Black’s absolutist opinion in Reid was a plurality only, and that the case did not overrule In re Ross, in which a citizen’s right to trial by jury was found not to apply in the context of consular court prosecutions outside the territory of the United States. Notwithstanding the lack of five votes, Black’s opinion in Reid is typically treated as representing a pretty absolute rule of constitutional law: for citizens, the constitution is portable. Is Kennedy backtracking from that here? If so, having citizenship now gets you less.

(There is also the decision today in Munaf, in which the Court throws the bone of statutory habeas to citizen petitioners, in part by virtue of their status as such, only to find no relief with a decision playing hard on the retrograde territorialist logic of Schooner Exchange v. McFaddon.)

More obviously, the lack of citizenship may be less of a disability post-Boumediene. It’s still a part of the picture: on page 36 of the slip, where Kennedy lays out the test for determining the reach of the Suspension Clause, citizenship is in effect included as half a factor (and one that’s then completely ignored, for obvious reasons). Citizenship status seems to be one of the elements of formalism that Kennedy has in his cross hairs (the other being sovereignty). This doesn’t mean that noncitizen status is by any means irrelevant — Kennedy concurred in Verdugo-Urquidez, with some language playing up the citizenship factor — but perhaps to the extent “practical obstacles” to the application of constitutional rights don’t inhere, noncitizens now have an opening they didn’t have yesterday.

A First Take On Boumediene: Habeas Corpus and Error Correction

by Steve Vladeck

First, my thanks again to Roger, Peggy, and the rest of the OJ crew for the opportunity to share some preliminary thoughts on Boumediene. Obviously, there’s already a lot out there, with much more yet to come. Rather than tackle the big and obvious headline stuff, or try to respond to other points already made, I want to focus on what, for me, was the most fascinating part of Justice Kennedy’s majority opinion—his excursus on the purpose of the writ of habeas corpus.

Consider the following passage, found at pages 55–57 of the slip copy:

Even if we were to assume that the CSRTs satisfy due process standards, it would not end our inquiry. Habeas corpus is a collateral process that exists, in Justice Holmes’ words, to “cu[t] through all forms and g[o] to the very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell.” Even when the procedures authorizing detention are structurally sound, the Suspension Clause remains applicable and the writ relevant. . . .

Although we make no judgment as to whether the CSRTs, as currently constituted, satisfy due process standards, we agree with petitioners that, even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal’s findings of fact. This is a risk inherent in any process that, in the words of the former Chief Judge of the Court of Appeals, is “closed and accusatorial.” And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore. [alterations in original]

In other words, the constitutional sufficiency of the CSRT procedures is only one small piece of the puzzle. The fact that there is a substantial likelihood of incorrect results, and that such results would cause immeasurable harm, is itself a reason to conclude that the DTA review process is an inadequate substitute for habeas. This may seem like doublespeak, because how can the process be truly constitutionally “adequate” if there is such a high probability of inaccuracy. Chief Justice Roberts certainly seems to think this is nuts in his dissent. But I think Kennedy is saying something else here—that accuracy is the desired end, and procedural sufficiency is but a means thereto.

If so, then such analysis would constitute a potentially sweeping retreat from one of the hallmarks of the Rehnquist Court’s habeas corpus jurisprudence (and the scholarship of the legendary Paul Bator): the idea that habeas corpus is not about error correction; that the “Great Writ” is meant to ensure fair proceedings, but not necessarily accurate proceedings. (For one troubling example of such a case, see Herrera v. Collins).

Kennedy is careful, of course, to note that this discussion is limited to the context of habeas petitions challenging detention by executive order, and not other forms of habeas review where there is less reason for skepticism. As he says on pg. 57, “Consistent with the historic function and province of the writ, habeas corpus review may be more circumscribed if the underlying detention proceedings are more thorough than they were here.” But I wonder if that’s not closing the barn door after the furry little things have already left, for it begs the question whether the “underlying detention proceedings” are “thorough,” and it suggests that habeas review is far broader whenever there are reasons to think that such proceedings are not.

The idea that habeas actually should be about error correction (or, at least, should also be about error correction) when there are reasons not to trust the underlying detention proceeding is reminiscent of the heyday of the Warren Court’s habeas jurisprudence. I’m just surprised to see it re-emerge here, and so prominently, at that…

I hope to have some more later on the relationship between Boumediene and the equally significant decision today in Munaf, but thought I’d pause here, for now.

The Territorial Reach of the Constitution

by Roger Alford

Just to get the discussion going, I wanted to highlight the Court’s analysis in Section IV of the Boumediene decision on the territorial reach of the Constitution. The precise question presented is the geographic question of whether the constitutional guarantee of the writ of habeas applies to detainees at Guantanamo Bay.

Before discussing the case, it is worth highlighting the different models that have been used to address the territorial reach of the Constitution. As Gerald Neuman has noted in his important article “Whose Constitution?” in the 1991 Yale Law Journal, there are four major models: universalism, membership, territorial, and a balancing approach of global due process. Here is how Neuman summarizes the four models:

Universalist approaches require that constitutional provisions that create rights with no express limitations as to the persons or places covered should be interpreted as applicable to every person and at every place. The precise commands of the provisions, especially of those creating rights subject to balancing tests, may vary from place to place, but one can never simply dismiss the provisions as inapplicable….

Social contract rhetoric has played a significant role in American constitutionalism. Social contract theory seeks to legitimate government through the idea of an actual or hypothetical agreement embodying the consent of the governed who have established the state and empowered it to govern. Some accounts of social contract theory identify a limited class of “members” as the proper beneficiaries of the contract. The beneficiaries have rights based in the contract; nonbeneficiaries are relegated to whatever rights they may have independent of the contract….

Under a strictly territorial model, the Constitution constrains the United States government only when it acts within the borders of the United States. Strict territoriality prevailed as dogma for most of American constitutional history, until its overthrow in Reid v. Covert….

This emphasis on the countervailing necessities of overseas action may suggest that all of these models can be collapsed into a brand of harmless universalism: recognize constitutional rights as potentially applicable worldwide, and then balance them away. One might engage in ad hoc balancing in the individual case, or balance more categorically; the balancing process may be intrusive or highly deferential. The concurrences of Justices Frankfurter and Harlan in Reid v. Covert offer an example of this approach as regards citizens’ rights abroad, and Justice Kennedy in Verdugo-Urquidez located himself within the tradition of Harlan’s concurring opinion. This approach suggests that, ultimately, extraterritorial constitutional rights boil down to a single right: the right to “global due process.”

So where does Boumediene fall among those models? It is difficult to say, because in some respects the question is limited by the Court’s determination that Guantanamo Bay effectively is within the territory of the United States. But there definitely is some language in the opinion that seems to suggest a much broader approach than simple territoriality. Here are a few key excerpts:

We therefore do not question the Government’s position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay. But this does not end the analysis. Our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory…. [F]or purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory. The Court has discussed the issue of the Constitution’s extraterritorial application on many occasions. These decisions undermine the Government’s argument that, at least as applied to noncitizens, the Constitution necessarily stops where de jure sovereignty ends. (pp. 23-25)….

In its principal brief in Eisentrager, the Government advocated a bright-line test for determining the scope of the writ, similar to the one it advocates in these cases. Yet the Court mentioned the concept of territorial sovereignty only twice in its opinion. That the Court devoted a significant portion of Part II to a discussion of practical barriers to the running of the writ suggests that the Court was not concerned exclusively with the formal legal status of Landsberg Prison but also with the objective degree of control the United States asserted over it. Even if we assume the Eisentrager Court considered the United States’ lack of formal legal sovereignty over Landsberg Prison as the decisive factor in that case, its holding is not inconsistent with a functional approach to questions of extraterritoriality. The formal legal status of a given territory affects, at least to some extent, the political branches’ control over that territory. De jure sovereignty is a factor that bears upon which constitutional guarantees apply there…. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” (pp. 33-35)….

It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding. We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. (p. 41).

My first blush reading of the case is that the Court is adopting a rule that the Constitution applies abroad provided the United States exercises de facto sovereignty. I’m not sure if that is closer to a territorial model, the balancing global due process model, or something in between. At a minimum it appears that the Court is rejecting the broad universalist and the narrow membership models.

Roberts Summarizes Boumediene: No One Wins

by Julian Ku

I haven’t had time to come up with anything interesting or cogent about the expected but still disturbing result in Boumediene. And we have an all-star cast of guest-bloggers ready to comment, as Roger points out below. But as a place to begin, it is worth checking out Chief Justice Roberts’ powerful conclusion to his dissent, which I think accurately characterizes the likely result of this decision: more muddle and more litigation.

So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases,
followed by further litigation before the D. C. Circuit— where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine— through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636 (2006) (BREYER, J., concurring), has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.

Boumediene “Insta-Symposium”

by Roger Alford

The Supreme Court has just rendered its decision in Boumediene v. Bush, announcing that the DTA procedures are not an adequate and effective substitute for habeas corpus and that the MCA operates as an unconstitutional suspension of the writ.

Opinio Juris is very pleased to announce an “insta-symposium” to discuss the decision. We have an amazing line-up of guests, including Geoff Corn (South Texas), Eric Freedman (Hofstra), Paul Halliday (Virginia), Chimène Keitner (Hastings), Andrew Kent (Fordham), Jenny Martinez (Stanford), Julian Davis Mortenson (Fordham), Michael Newton (Vanderbilt), Deborah Pearlstein (Princeton), Patrick Philbin (Kirkland & Ellis), David Scheffer (Northwestern), Beth Van Schaack (Santa Clara), Steve Vladeck (American), and G. Edward “Ted” White (Virginia).

We look forward to the discussion over the next few days.