What’s Left of Judicial Deference?

Though the opinion in Munaf and Omar should give us all some pause, I’m still thinking that yesterday’s Boumediene opinion comes as close as I’ve seen the court come to sounding the death knell for broad judicial deference to the executive on matters of national security.

The majority opinion doesn’t just embrace a functional approach to resolving questions of the scope of the Constitution’s applicability abroad. (When constitutional lawyers talk about functional approaches, they generally mean something that takes into account the practical effects of a particular outcome in resolving questions of constitutional power). In announcing the practical considerations that matter, Justice Kennedy’s opinion gives executive claims of security necessity (that is, the executive’s view of what’s practical) at Guantanamo the back of his judicial hand.

What does matter in determining whether the Constitution (here, the Suspension Clause) constrains U.S. actions outside the territorial United States? Kennedy says three things: 1) citizenship and status of detainee; 2) the nature of the site of the detainee’s apprehension and detention; and (3) practical obstacles inherent in resolving entitlement to writ. What about the practical obstacle the administration’s been touting all along—that full habeas hearings with consideration of all evidence and so forth would compromise U.S. national security? According to Kennedy: “The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.” Ouch.

Marty’s right that the decision leaves open the critical next question of what about the habeas petitioners today held at the United States base in Bagram, Afghanistan. But that’s a pretty strong shot across the bow of the executive branch all the same.

[Cross-posted at Convictions]