Boumediene and the Use of History; Boumediene & Munaf

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.