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 Â§7, 28 U. S. C. A. Â§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.
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