Boumediene as War Policy

It's hard for me to add anything to the many, many excellent legal analyses of Boumediene (Thursday's Supreme Court decision regarding habeas corpus for detainees at Guantanamo Bay), given how much electronic ink has already been spilled on the subject.

But I did want to add a discussion of how this shows the Supreme Court acting in its policy-making (or policy-advising) role, and also discuss this decision's operational implications for America's war on terrorism.

The high court abstained from explicitly deciding some of the ultimate questions, punting those back down to the federal district court that will hear these habeas corpus petitions. These include the question of whether the U.S. is actually at war, with whom, and whether it may detain prisoners indefinitely in that war.

But as my Convictions colleague Marty Lederman notes, the court did signal its views on these issues, and it did so quite clearly. In his opinion, Justice Anthony Kennedy writes: "Whether the President has such authority [to detain petitioners indefinitely] turns on whether the AUMF authorizes--and the Constitution permits--the indefinite detention of 'enemy combatants' as the Department of Defense defines that term." Which Marty reads to mean that there is some limit on executive power -- stemming from both the language in Congress' authorization of the use of force and the Constitution. That position rebuffs the government's argument for unlimited war powers, as well as the broader theory of unlimited executive powers in the national security field.

A second and related point flows from this: The Supreme Court has ratified the decision by Congress and the president to treat the current conflict as a "war," with all that entails. That's not a stunning conclusion; it's one well-grounded in the law and consistent with the court's earlier holdings in Rasul, Hamdi and Hamdan. The court reaches this conclusion on positive grounds -- it does not ask the larger normative question of whether the U.S. ought to be at war, nor whether war is the right form for the conflict. Instead, the court relies on orthodox legal reasoning to ratify the decisions of the other two branches. It's an illustrative example of how the court does and does not act in this sphere.

Third, I agree with Ben Wittes and others that this decision obliterates the administration's rationale for Guantanamo Bay itself (that it was a location beyond the reach of U.S. law) and undermines the entire detention and interrogation regime the administration has constructed. U.S. law now clearly applies to the detainees at Guantanamo. And while the court implied that strongly in Rasul and Hamdi, it has now spelled out the enforcement mechanism (habeas corpus petitions in federal district court) to make that work in practice.

In rejecting the "Combatant Status Review Tribunals" sufficiency, and endorsing the habeas corpus proceedings for detainees, the court has destroyed the ability of the government to do things behind closed doors at Gitmo. The court also imposed the standards of evidence, proof and constitutionality that apply in federal district court. This means the current interrogation regime cannot stand. Simply, if the government's evidence against a given detainee came through torture, or was tainted by torture (which includes the full range of coercive interrogation practices in use over the past six years), that evidence will likely be suppressed. And the case will likely be tossed out.

Justice Kennedy, however, takes great pains in his majority opinion to limit the effect of this holding by carving out breathing room for the government. This passage appears towards the end of his opinion:

Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court. The only law we identify as unconstitutional is MCA §7, 28 U. S. C. A. §2241(e) (Supp. 2007). Accordingly, both the DTA and the CSRT process remain intact. Our holding with regard to exhaustion should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee's status before a court entertains that detainee's habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant's habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status.

Although we hold that the DTA is not an adequate and effective substitute for habeas corpus, it does not follow that a habeas corpus court may disregard the dangers the detention in these cases was intended to prevent. Felker, Swain, and Hayman stand for the proposition that the Suspension Clause does not resist innovation in the field of habeas corpus. Certain accommodations can be made to reduce the burden habeas corpus proceedings will place on the military without impermissibly diluting the protections of the writ.

Kennedy's caveating will likely provide the roadmap for future legislation on this subject, as well as future Justice Department litigation strategy. Congress will almost surely take up this issue again, to reshape and reform the CSRT/DTA process in a way that conforms with the Constitution and the law of habeas corpus. Congress may also reshape the habeas statute itself to define how national security cases (like those involving Gitmo detainees) should be heard. I don't think that Congress is ready yet to propose a national security court, but we'll see.

At the end of his opinion, Justice Kennedy closes with some sweeping language about the role of law (and the Supreme Court) in deciding American war policy:

Our opinion does not undermine the Executive's powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek. [emphasis added]

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. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism. Cf. Hamdan, 548 U. S., at 636 (Breyer, J., concurring) ("[J]udicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine--through democratic means--how best to do so").

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. We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

This captures the Supreme Court's current view of its role in the war on terrorism and the role of law generally. I find some irony in this passage, because it echoes Appendix D to the Army and Marines' new counterinsurgency manual, as well as some other writings on the subject of law in war. The essence of the argument is this: America is strongest when it acts with legitimacy; respect for the law confers legitimacy on American actions, and thus bolsters American power. It's a repudiation of the "lawfare" argument that views law as a constraint that diminishes American power, and it's a repudiation of the argument that the president alone has the authority to chart America's course in war policy. Ultimately, in Kennedy's opinion, it is the Supreme Court that gets the final say on these questions.

By Phillip Carter |  June 14, 2008; 12:26 PM ET  | Category:  Law
Previous: A Right Vets Fought For | Next: McCain's War


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This opinion appears well crafted, and more importantly well commented. We can see where the Court gets its findings, and how it has given incredible deference to the Executive and Congress. The Court has given them wide maneuvering room to come up with something that passes the smell test.

In effect they are being given the chance of a do-over with regard to re-writing the whole framework and legal rounding.

The Court was very careful not to rule on the legality of any other process other than habeas corpus.

Men of bravado in the administration may take this to be a nod that they can go forward with trials under the existing flawed system.

I think a wise man should read it as, "You should be glad that we limited our selves to just that issue, because if we had not the rest would have come tumbling down.... Now go back and re-think the whole system and re-design it your selves, before we really kick over your sandcastle."

The Court has laid a legal jurisdictional foundation, and this should give the government pause, and the latitude to re-think this from the ground up.

They need to consider if they are perusing criminal convictions, or war crimes. The two are worlds apart.

If the court had gone one or two steps more it is possible that it could have ruled the whole Git-Mo process to have been deliberately un-lawful, and that may have resulted in incitements, lawyers losing their licenses, and possibly some in the administration and the chain of command facing trial.

Right now, the court has only flooded the castle mote. The sand castle builders can retreat and reform with a more sound legal plan, or they can stay and fight on infirm ground.

I think the administration is NOT going to take the olive branch offered by the court. I think they are going to try to re-craft new law to shore up the ramparts of their sandcastle.

Watch for the new trailer coming to FOX news promoting the "McCane/Bush separate but equal justice for enemy POW's". Soon to be returning on every cable election news show.

This fabulous new realty show, now in it's 6th season, with a new twist for this year, every POW is given a chance to prove his innocence and get of the island. The lucky ones who do well on dog tricks maybe even win real food and token access to counsel. Not exactly private access but with cameras monitoring their every word and censors examining every document.

Will team orange manage to mount an offensive so some of them can escape? Or will the producers in WashingWood think of new games they must play before getting daylight and real food?

Tune in for this seasons thrilling installment of escape from Gunataniomo, complete with innuendo, juicy hearsay and new plot twists that even baffle the professional stunt lawyers.

This is sure to be a hit this fall, ratings season, just press D or R on your remote.
Voting only open to certified citizens of the US, who are over 18, and who can prove beoyond reasonable doubt that they have two forms of State Identity cards, as ruled sutable by the Department of Justice and Homeland Security, (known 65 years ago in Germany as the Gestapo), and are correctly registered in the district in which they live, and are not on the lists of un-desirable persons.

Posted by: James M | June 14, 2008 11:18 PM

I'm not arguing the rightness of the whole detainee/Guantanamo issue. I thought that Congress had said that the Supreme Court did not have jurisdiction for these detainees. The Constitution specifically gives Congress the right to create exceptions to the Supreme Court's jurisdiction through the exceptions clause. Why should the SCOTUS decision be valid if they don't have jurisdiction?

Politically, I doubt that the current congrss would be inclined to pursue the matter but isn't this a constitutional problem and thus couldn't the administration make a valid case for ignoring a decision by the SCOTUS over an issue for which it does not have jurisdiction?

Posted by: RM | June 15, 2008 1:41 AM

9:18AM World A'Hoy from Far West Jerusalem,All;

Even as a third of a Century practised,journalism concentrated,English speed-reader;

I must admit;Phil.This piece is too legalistic long winded to catch my detailed attention.

In direct regard to it;let me remind,there are numerous alledged cases where innocent people where hooded & whisked away toward Gitmo confinement,based on 'bounty paid'informent.

'Money Talks',even for nothing there.

Real Time Folks;I drop in early here; To let you in on the British embarrassment for Intel there;Leading Story at this Sunday UK Independeent;that I'm not going to read;or 'jour gems'further on now;

As I start this free E@World day by composing a remarkable 'Freedom' compose,that will only,first appear,on my U.S. Far & Thin newspaper forums,just before our sun sets over Jerusalem here,when all homeland U.S.should be awake for this Sunday June 15,2008.

Exclusive: New batch of terror files left on train

Secret government documents detailing the UK's policies towards fighting global terrorist funding, drugs trafficking and money laundering have been found on a London-bound train and handed to 'The Independent on Sunday'.

IoS returns confidential documents to Treasury as officials promise to tighten procedures

By Simon Evans and Margareta Pagano
Sunday, 15 June 2008

לחיים pronounced Le Chaim = To Life!

Michael of the upper west side.

Originally Manhattan.

Now Jerusalem.


(Now Submitting @9:42 AM)

Posted by: Michael of up West.Orig.Manhattan.Now Jerusalem. | June 15, 2008 2:42 AM

What the devil is AUMF?

Posted by: scvaughan | June 15, 2008 10:17 AM

Authorization to Use Military Force - the bill Congress passed that gave the Bush administration cover to invade Iraq.

Posted by: Butch | June 15, 2008 12:10 PM

McClatchy is starting a series on the totally f'd up Bush detainee policy - starting today with Detainees no threat? It made no difference.

Read it and weep.

Posted by: Butch | June 15, 2008 12:20 PM

The "AUMF" is the "Authorization for the Use of Military Force"- a few short paragraphs from Congress authorizing the President to go to war in Afghanistan in 2001 in order to bring those responsible for 9/11 to justice. Unfortunately, it the very shaky legal basis from which we base our justification for Gitmo and how we treat detainees. As a military officer (turned Army lawyer now studying for the bar exam), this decision just shows me we need to overhaul the way we look at this war legally. I truly believe we aren't at "war" in any traditional sense...the war on terror is more like the "war on drugs". After three years of study on this issue (and a tour in Iraq in the town of Baqubah, in the Diyala province as a combat platoon leader), I believe we need to shift from a "War on Terror" paradigm to a "Terrorism is a Crime" paradigm and cut out the legitimate resistance that flows from the word "War". Terrorists groups are not "Warriors" in any sense- warriors follow the Geneva Conventions and, while not perfect, go through tremendous efforts to minimize or neutralize civilian causalities. Terrorist groups are simply thugs and criminals who prey on fear and innocent people. They should be viewed as such- both in the court of public opinion and, most importantly, in the law. Congress and the next President should really step up to the plate and overhaul the system we are using to punish these criminals and give it the breath of legitimacy it needs. I think framing the issue as one of criminality, which is within Congress's power and is backed by a substantial body of case law, is better than trying to create an ad-hoc system based on "Combatant Status" relying on old cases from WWII with minimal precedent.
Oh, and this posting is both well done and, to be honest, may be difficult to understand if you aren't a lawyer or familiar with Constitutional Law. I might suggest, for a dense but complete understanding, a book my Prof. Harold Bruff called "Balance of Forces". It's not a light read, but it should frame some of these issues better. Also, it's a-political and shouldn't offend either Republicans or Democrats.

Posted by: Chris L. | June 15, 2008 12:30 PM

"It's hard for me to add anything..."

Heh. I can add plenty, but not sure how much I want to just yet. Still have to read Robert's dissent too.

I'll say this much though --

The only legislation needed here is the repeal of both the DTA and MCA, for the same reasons Guantanamo should be closed.

Posted by: Charles Gittings | June 15, 2008 1:51 PM

I am also surprised that the follow the flag theory of jurisdiction, as it has been applied to ships since before the discovery of America has not been discussed, either in this thread or more throughly by the court.

A ship, where ever it may go, and in what ever port it calls on, is still the sovereign territory of the nation who's flag it flies.

As a navel base, the staff of Gitmo should understand this.

If you are on the Carnival Princess, while steaming across the Atlantic ocean, and it is flying a Bahamian flag, then you are under that nations laws for the voyage.

This is why you need that nations permission to board the vessel in international waters. And why, after an initial customs inspection, any further search or inspection of the vessel in port requires the permission of the master and falling that, the nation in question.

The jurisdiction following the flag is why ships still fly national flags, even today. This is why, when capturing a ship, or for that matter a mountain, you strike the prior flag and hoist your own.

The flag is the direct symbol of the jurisdiction de jour.

Posted by: James M | June 15, 2008 3:21 PM

The decision was BS; another instance of the "rule of lawyers" rather than law, as the dissent so aptly pointed out. Here is a utopian version of squaring the circle in the context of lawful warfare or war crimes; contradictions in terms. I'm curious, what is lawful about carpet bombing or nuking a city? Warfare is the absence of law, not an exorcise in civil society rituals of decorum. And strictly speaking, the supreme court doesn't get the last word; the people do. Lawyers get to play their games, and grunts get to play theirs; taking prisoners is optional.

Posted by: don | June 15, 2008 5:06 PM

"Warfare is the absence of law"


Posted by: hotrod | June 15, 2008 5:56 PM

I'm confused.

Like James M, I assumed "follow the flag" already settled Guantanamo Bay's legal status as an American (military?) territory. I didn't think the base was a legal hole in the world.

I thought the debate was about determining the legal status of the detainees themselves - not on the legal status of Guantanamo Bay - as non-American extra-national globalized combatants who are not-soldiers and not-criminals.

Posted by: Eric Chen | June 15, 2008 6:25 PM

First the court figured it did have jurisdiction de jour, follow the flag.

The localized black hole theory advanced by the administration was wiped out.

Then it figured that there were no individual exceptions to habeas corpus, being the first right of a person, articulated even before the bill rights. That it applies to all persons, otherwise A) would have said so, and B) it would be to easy for the government to circumvent.

It did articulate when habeas corpus could be suspended, and found that this was not one of the two exceptions.

(Note that if when it is suspended, it can't be for just and individual, or a class of people, but in the event of an invasion, it is suspended for ALL people, US citizens too, for that is what suspension means.)

The logic is simple, even for me.

For those of you who think that the constitution only applies to US citizens think of this: If you argue that the constitution only applies to US citizens and not aliens then.... because the ability of a government to make and enforce laws flow down from the US and state constitutions ..... if they don't apply to aliens equally then a Mexican could come to your town and shoot you, with out fear of the law, because the law would not apply to him, becuase the document that empowered the law did not apply to him.

Posted by: James M | June 16, 2008 12:04 AM

The comment "I assumed"...the legal status setttled. "I thought the debate was about determining the legal status of the detainees themselves".

Ah, but the administration articulated the legal black hole theory, hence the detention center being located in Gitmo. First the court had to establish and articulate jurisdiction, and in doing so it fired a warning shot across the bow of the administrations rather leaky legal ship.

Having done that the habeas corpus was a no brainier. The decent was all about jurisdiction, for exactly that reason, once constitutional jurisdiction is established the decent has lost it's legal footing.

I think that by looking at US and international maritime law we can get a good picture of long settled, extra terrestrial jurisdiction.

For example during a voyage on a US ship a sailor can be disciplined by the master, and even detained in a cell, but when returning to US soil the sailor can then have his day in court, with all the rights afforded to a person, even though the offense happened beyond the US territorial waters. Because... to put it simply, jurisdiction follows the flag.

Posted by: James M | June 16, 2008 2:22 AM

Chris L.,

You are sadly mistaken my friend. You meant to say: SOLDIERS follow the Geneva Conventions and, while not perfect, go through tremendous efforts to minimize or neutralize civilian causalities.

"Warriors" is an apt description of what we are fighting against. You know, "thugs and criminals who prey on fear and innocent people."

The sad fact is that small-minded men like GEN Peter Schoomaker so turned these definitions on their head that RA Army CPTs like yourself genuinely believe that a misguided/mis-named "warrior ethos" is at the core of US Army identity/ethics/image. It's not. "Warrior" is Orwellian "newspeak" that gained traction is a politicized DoD Public Affairs shop headed by the likes of Larry DiRita, Allison Barber and Dallas Lawrence whose meassges were amplified via carefully vetted "surrogates" like MG Robert Scales, MG Paul Vallely, LTG Thomas McInerney, Jed Babbin, Michael O'Hanlon, etc. It is my fervent hope that this poson will be purged by whatever administration takes the helm in January.

How sad.

Good luck on the Bar Exam.

Posted by: IRR Soldier ... | June 16, 2008 10:40 AM

In the run-up to the 2000 election, I would have voted for McCain over either Bush or Gore (and would have voted for Bill Bradley over any of them). McCain actually did a bit of straight talking back then and I was willing to overlook his role in the S&L scandal as one of the infamous "Keating five."

But it is difficult for me to overlook his repeated sucking up to George Bush even after Bush and Rove stuck a knife in his back in the 2000 South Carolina primary. Or his caving on the torture issue. Or his sponsorship of campaign finance reform followed by his gaming of that system in the current campaign. Or his lack of support for Webb's GI bill. Or his flip-flop on the immigration issue. Or the transparent attempt to conceal the bulk of his medical records by "releasing" 1500 pages of them on the Friday before Memorial
day and imposing these restrictions on the release:

"On Friday, the campaign will allow a small pool of reporters access to the records from 7 a.m. to 10 a.m. Pacific time in a conference room at the Copper Wind Resort in Phoenix, near the Mayo Clinic Scottsdale. The reporters will be allowed to take notes but not remove or photocopy the records. Campaign officials said they were imposing the restrictions to prevent the actual records from wide dissemination.

The above paragraph is from a May 22nd NY Times story at:

And then there's the character issue, primarily what he did to his wife of many years after returning from Viet Nam. He reminds me of Newt Gingrich -- someone who thinks that character is important as long as it's someone else's character that's under discussion.

And here's an interesting article on McCain's military record:

While Phil Carter started this thread on the topic of McCain's NWC thesis (and bg made excellent points about why we should not view that thesis as the complete story of McCain's current views), all these other things -- medical condition, age, political career and character -- are fair game in a Presidential Election.



Posted by: almost drafted | June 17, 2008 11:24 AM

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