Commentary to Boumediene

While I fully agree with Justice Kennedy’s majority opinion and Justice Souter’s concurring opinion in Boumediene v. Bush, I found it significant that neither those opinions nor the two dissenting opinions of Chief Justice Roberts and Justice Scalia found it necessary or desirable to refer to international law despite the relevance of that body of law to the earlier Guantanamo cases of Hamdi, Rasul, and particularly Hamdan. Of course, one should never be surprised or alarmed at sole reliance on U.S. law and precedent in a federal court’s adjudication of a dispute. But in Boumediene the opportunity existed to confirm that even if one were to accept the dissenters’ view that Guantanamo remains outside of U.S. sovereign de jure jurisdiction and thus, in their view, outside the reach of the Constitution’s habeas corpus protection, there are minimal due process rights and fundamental guarantees established in the International Covenant on Civil and Political Rights and in the Geneva Conventions (treaties to which the United States is a State Party) and in customary international law (including Article 75 of Geneva Protocol I, reaffirmed by the plurality in Hamdan) that point to a duty by U.S. officials, wherever they operate in the world, to provide far better access to the legal rights underpinned by habeas corpus (as part of the broader principle of a fair and speedy trial) than has been afforded by the Bush Administration in its detainee policies since 9/11 or by the U.S. Congress (in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006).

The self-inflicted and increasingly fatal wound of the government and of the dissenters was the original decision to create the novel “unlawful enemy combatant” category for Guantanamo detainees that purported to deny them both prisoner of war status under the Geneva Conventions (and the fair trial rights of POWs) and any terrorist categorization under U.S. federal criminal law compelling prosecution before long-established criminal courts and under the anti-terrorism laws already available in the U.S. Code.

The legal vacuum into which the Bush Administration threw all Guantanamo detainees distanced such individuals from the rationale advanced by Justice Scalia in his dissenting opinion, where he relies so heavily on distinguishing the Johnson v. Eisentrager precedent from the majority’s view of it. The German defendants in Eisentrager were prisoners of war who had been prosecuted before a duly constituted U.S. military commission in China for violating the laws of war during armed conflict (WWII) outside the United States. Their prosecution, and the Supreme Court’s affirmation of the denial of habeas review in Eisentrager, occurred in part because they had prisoner of war status when prosecuted and the procedures under which they were prosecuted were deemed by the Supreme Court to satisfy due process requirements for a U.S. military trial held overseas on territory over which the United States had neither de jure nor de facto sovereignty. In contrast, it is the lack of prisoner of war status for the Guantanamo detainees (even those with strictly Taliban associations) and the insufficient application of necessary due process standards, particularly in a flawed military commission on territory over which the United States exercises de facto sovereignty (namely, Guantanamo), that compels the majority in Boumediene to focus on the habeas corpus right and the necessity of its availability under the circumstances of Guantanamo.

Scalia fumbles within his own reasoning by analogizing the Guantanamo detainees to “the more than 400,000 prisoners of war detained in the United States during World War II. Not a single one was accorded the right to have his detention validated by a habeas corpus action in federal court—and that despite the fact that they were present on U.S. soil.” If only that were the case under these circumstances!

What if, from the beginning of the U.S. military invasion of Afghanistan in 2001, the government had clearly established the constitutional basis for waging a war (and not the rhetorical battle cry of the so-called war on terror) and established two sets of detainees—those classified as prisoners of war and detained at U.S. facilities either on U.S. territory or on foreign soil (including Guantanamo where U.S. de facto sovereignty resides), and those classified as terrorist suspects and arrested for trial as terrorists before U.S. federal courts?

The prisoners of war—who, by the way, need not satisfy every single condition of Article 4 of the Third Geneva Convention to be accorded prisoner of war status or comparable status by the detaining power—could have been held without access to habeas corpus and without trial for the duration of a reasonably-defined state of war. The government could have used its discretion, assuming the war was properly authorized, legitimately to categorize certain terrorist suspects and most if not all of the Taliban soldiers as prisoners of war. That would have satisfied Justice Scalia’s preference for denial of habeas corpus for such alien enemies. There would not have been a legal vacuum of the character the dissenters in Boumediene have so consistently endorsed in the Guantanamo line of cases. Granted, those individuals whom the government desires to classify as international terrorists would have to be indicted, arrested, transported to the United States, and brought to trial in accordance with U.S. requirements of due process, including habeas corpus. The artificially-concocted category of “unlawful enemy combatants,” which has been the gateway to the Bush Administration’s distortion of both the law of war and anti-terrorism law, never would have survived the earliest scrutiny.

“What if?” never trumps reality, but the Supreme Court’s majority opinion in Boumediene invites us to speculate how different this entire mess would have been if only American policy-makers had had greater faith in long-standing federal law and the Constitution. The dissenters are seemingly intimidated by the terrorist suspects and others swept up for detention at Guantanamo, all of whom were labeled as “unlawful enemy combatants.” The dissenters continue propping up the deeply flawed detention procedures and military commission system that were carved out of fear not only of terrorism but of the Constitution, rather than upholding the Founders’ commitment to the rule of law. It is the latter that will best defeat international terrorism directed against the United States and not the Bush Administration’s approach, which was struck down once again by the Supreme Court.