Highlights from Boumediene v. Bush

The PDF of the decision is available here.

It's too simple to say why the Court ruled the way it did in one or two sentences. You need a little more. I'm going to go through some of what I consider the highlights from the majority opinion here.

The issue of the case is whether the petitioners (individuals classified as enemy combatants by our Government who are being held at Guantanamo Bay, Cuba indefinitely) have the Constitutional privilege of Habeas Corpus. The holding is that the petitioners do have this privilege, and that the Military Commissions Act, Sec. 7, is an insufficient substitute for this privilege.

Habeas Corpus, for those who are unaware, is the right to challenge the validity of one's detention before the court (Black's Law Dictionary, 7th edition). This right is guaranteed under the Constitution in Art. I, Section 9, Cl. 2: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Taken in strict constructionist terms, this may seem to be all the reasoning one might need. However, there is more to what constitutes what is Constitutional than simply reading the plain language of the Constitution. One must also consider stare decisis - previous rulings by the Court interpreting the Constitution, and consider how the law in question compares to the laws previously ruled upon.

After conceding that the State was authorized to detain those captured and classified as Enemy Combatants for the duration of the conflict (Hamdi v. Rumsfeld 542 U.S. 507 [2004]), the Court set out to determine how and whether the law applied. First, the Court noted that these individuals were all captured, some on the battlefield, others in such locations as Bosnia and Gambia, and noted that none of the individuals petitioning the Court were citizens of a nation with whom the United States was now at war. The CSRT (the "alternative" to habeas review authorized under the MCA) had reviewed these individuals' petitions (the petitioners were not authorized legal counsel in these - it's not a trial - and they were not able to view much of the evidence presented against them - Democracy in action).

Now to get into the decision - The Court had to first determine whether the MCA served to deny federal court jurisdiction for habeas proceedings - which it did - and then the Court had to determine if this law was valid, thereby requiring the petitioners' cases be dismissed. In otder to determine the validity of the claim, the Court had to consider which of two possible reasons the Petitioners were barred from seeking Habeas relief: their status as "enemy combatants" as they were designated by the U.S., or because they were housed in Guantanamo Bay.

The Government's position was that these were non-citizens who were designated enemy combatants, and they were housed outside the United States, therefore they have no Constitutional Rights. Another way of putting this is "We get to designate what these people are, and we designated them enemy combatants. We did this because we think that Eisentrager [339 U. S. 763 (1950)] will allow us to deny them Constitutional rights." This justification should give Americans pause, because it basically says that the Executive Branch can designate whomever they want "enemy combatants" and deny them right to challenge their classification, to view the evidence that led to that determination, which goes against one of the fundamental tenets of our nation - that we were distrustful of the Government's power of the People.

The Court referred to the Magna Carta in its support for the importance of the Suspension Clause - that No man would be imprisoned contrary to the law of the land (Art. 39). It also cited Blackstone, who stated that the Habeas Corpus Act of 1679 (which established the procedures for issuing the writ and served as the model for the Colonies' habeas statutes) was the "stable bulwark of our liberties." The Court tied these, and other concepts together -

This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from liberty were endemic to undivided, uncontrolled power. The Framers' inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty.

Justice Kennedy's opinion also points out that the Suspension Clause existed in the original draft of the Constitution - predating the Bill of Rights - providing even more evidence of the importance of the Writ to the Framers.

So the Writ is important to America. How does this apply to foreigners? Well, the Government said that the Writ has no application to individuals classified as enemy combatants and held outside the United States (see Eisentrager). The difference, the Court notes, is that Eisentrager deals with individuals held in German prisons, whereas the detainees at Guantanamo Bay are held on a U.S. government facility in a U.S. territory under complete U.S. control. Generally speaking, citizenship of the individual seeking relief is viewed as more of a non-factor based on American and British precedent, see e.g., Sommersett's Case, 20 How. St. Tr. 1, 80-82 (1772) and generally Khera v. Secretary of State for the Home Dept., A.C. 74, 111 (1984).

The Government argued that the Writ does not apply because, like Scotland and Hanover with respect to England (where the writ did not apply), Cuba has its own court system. This is a false analogy, though, as the detainees, while technically on Cuba, are held in a U.S. Territory and are not authorized access to Cuban courts, whereas prisoners in Scotland and Hanover were. In terms of sovereignty, the Court notes that there are two types - De Jure sovereignty (which is what Cuba holds over Guantanamo Bay), and De Facto sovereignty, such as that held by the United States over the same. The Court held that De Facto sovereignty controls questions regarding habeas standing, which makes sense.

This is one of the reasons supporting a rejection of Eisentrager. Another is that relying solely on Eisentrager would mean that the Court reversed its position from the Insular Cases, where it said that questions regarding extraterritoriality needed to be viewed individually based on the circumstances. Further, the prisoners in Eisentrager had already been tried and convicted (this is important to the Court in distinguishing the cases) and they did not challenge their status, as the detainees are.

The meat of the decision, indeed the lines that I've heard the most over the past couple of days, come from this next section. The Government claimed that it has no jurisdiction over Guantanamo Bay because of the lease treaty of 1903, and thus the Constitution has no effect there. Because of the importance of the Court's answer to this, I will include the complete text from the opinion here:

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." Murph v. Ramsey, 114 U.S. 14, 44 (1885). 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 Courts 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." Marbury v. Madison, 1 Cranch 137, 177 (1803).
These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain. (emphasis mine)

Basically, Eisentrager does not apply, and the detainees are entitled to habeas relief in U.S. Courts because there are no other courts in which they could challenge the validity of their detention.

The Court did touch on the question regarding suspension of the Writ, and noted that there is no invasion or rebellion, the requisites for which the Writ may be suspended under the Constitution. The case law the Court cited shows incidents where habeas was intended to be streamlined and strengthened, not diluted as the Government sought to do in Boumediene.

Given the length of the majority opinion, I will look at the dissent in a future post. Again - I agree with this decision and find it good for our Nation.