Resurrection of the Writ: Habeas Corpus and Boumediene v. Bush

Two weeks ago, the Supreme Court announced its decision regarding Boumediene v. Bush. In opposition to the 2006 Military Commissions Act (MCA), the court ruled that prisoners at the Guantánamo Bay detention facilities retained the right to habeas corpus. The ruling upholds the detainees’ rights to due process, making it possible for them to challenge their confinement in civilian courts.

Image source: McClatchy

Since June 12^th, opponents of the decision have flooded opinion outlets with melodramatic—and often ill-informed—editorials, amplifying the paranoias of the American public. Senator John McCain regards the ruling as “one of the worst decisions in the history of this country,” while former House Speaker Newt Gingrich calls it “a disaster, which could cost us a city.” In the right-wing media, reactions have been similarly sensational. Weekly Standard editor Bill Kristol has called upon Senator McCain to promise legislation that would undermine the court’s decision, while CNN host, Glenn Beck, has suggested a solution of his own: “We're going to shoot them all in the head. If we think that they're against us, we're going to shoot them and kill them, period.”

CNN's Glenn Beck weighs in on Supreme Court decision

On the other hand, advocates of the decision have been equally immoderate in their rejoicing. The New York Times has championed the court ruling as a “stirring defense of habeas corpus.” Other liberal media have framed Boumediene as a narrow escape that has salvaged the national character of the United States. Such rhetoric often disregards the serious political implications of the ruling. Neither extreme is prudent; in order to prepare for its possible ramifications, it is essential to consider the ruling in a sober light. While this entry does not aspire to analyse the legal technicalities of Boumediene, it will attempt to offer a few additional thoughts that may not have been audible amidst the frenzied dogmatic din.

Dissenters have opposed Boumediene for two major reasons: 1) It grants non-US citizens undue legal protection and rights and thereby endangers the American public. 2) In overruling the MCA of 2006 as an unconstitutional suspension of the habeas writ, the judiciary has challenged both executive and congressional powers, thereby overstepping its jurisdiction.

To the first point, opponents have suggested that opening US courts to “foreign enemy combatants” offers them unprecedented reign to abuse the legal system. The predominant fear is that courts will be flooded with “hundreds” of habeas corpus writs at the expense of the American taxpayer. Worse still, high-profile dissenters have propagated the paranoia that released detainees will “[return] to terrorist activities” and jeopardize national security.

With regards to there being no precedent for offering constitutional rights to non-citizens, Justice Kennedy writes in his majority opinion: "It is true that before today, the Court has never held that non-citizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of the conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history." Justice Kennedy goes on to examine whether the provisions under the Detainee Treatment Act (DTA) of 2005 are a sufficient alternative to habeas; he concludes that they are inadequate. Although Justice Scalia argues in his dissent of Boumediene that prior to this decision, there was “no suspension of the writ [of habeas corpus],” while no explicit suspension occurred, the Military Commissions Act (2006) created a resilient legal framework that made it practically impossible for detainees to contest their imprisonment; thus, for six years, hundreds of detainees were held without trial.

Senator McCain speaks during a town hall meeting in Pemberton, NJ

Image source: Associated Press

Under the MCA, prisoners who are designated (or await designation as) “enemy combatants” do not have the right to habeas appeal. This designation is established through a Combatant Status Review Tribunal (CSRT) hearing; however, the MCA does not impose deadlines for the government to provide a hearing. Because there is no time limit, detainees can be held indefinitely without receiving a CSRT hearing. To cap it off, detainees are "legally prohibited from petitioning any court for any reason" prior to a CSRT hearing.

Thus, with the MCA, the Bush administration established an intractable legal knot that made it possible to detain prisoners indefinitely, essentially denying them even the most fundamental human rights. As an additional note, the claim that between 30 and 37 released detainees "return to terrorist activity" is simply false. Justice Scalia cited the statistic in his dissent; the number has since been repeated by Senator McCain, among others. A recent report by Seton Hall, however, establishes that the claim is “belied by all reliable evidence.” The report reveals that the number came from a 2007 Senate Minority Report, which in turn was based on erroneous information from the Department of Defense. (The DOD retracted its own statement in a 2007 press release.)

Regarding the second major objection, conservative commentators have proclaimed that we have reached a situation of "rule by judiciary" because the Supreme Court (the only unelected branch of government) has struck down both legislation passed by Congress and actions taken by the Executive. While it is not unusual for the Court to rule certain executive wartime powers as unconstitutional, as Ilya Somin's analysis aptly points out, "This is a nearly unprecedented situation where the Court rejected an important assertion of wartime power backed by both of the other branches of government." Nevertheless, although such occasions are rare (the last example occurred during the Civil War,) they are not unconstitutional. Indeed, the judiciary exists as an independent branch specifically to check the power of Congress and the Executive. Some opponents argue that Boumediene extends its protection too far and that amendments to the DTA would have been more prudent; however, as Justice Kennedy discusses, the DTA was too seriously flawed for minor adjustments to have been sufficient or effective.

In addition, the Court's ruling is by no means the final word. Congress retains the power to override Boumediene using the Suspension Clause. Under this clause, Congress may enact legislation that limits the right to habeas writ for specific types of detainees. Thus, by no means has the Court usurped both legislative and executive power, it has merely performed its constitutional function as a counterweight to the other branches of government.

Prisoners on the way to Guantánamo

Image source: Road to Guantanamo

As a final note, underlying the dialogue that surrounds Boumediene is the tacit notion that detainees at Guantánamo are treated as guilty until proven innocent: a principle fundamentally opposed to the spirit of numerous international human rights treaties, including the third Geneva Convention. From an ethical perspective, whether these detainees are guilty or innocent is beside the point: in addition to the provisions in Common Article Three, Article 103 of the third Geneva Convention stipulates:

Judicial investigations relating to a prisoner of war shall be conducted as rapidly as circumstances permit and so that his trial shall take place as soon as possible. A prisoner of war shall not be confined while awaiting trial unless a member of the armed forces of the Detaining Power would be so confined if he were accused of a similar offence, or if it is essential to do so in the interests of national security. In no circumstances shall this confinement exceed three months. (Emphasis mine.)

The MCA stripped Guantánamo detainees of their right to fair trial and “prohibit[ed] detainees from citing the Geneva Conventions as a legal basis for challenging their imprisonment or for seeking civil damages for their mistreatment.” (Washington Post, Sept. 22, 2006). Far from granting undeserved rights, the Boumediene ruling restores the detainees' basic status as human beings. Although the decision is certainly broad, (and may not have been the only--or even the best--way to protect detainee rights,) it is a just baseline; although suspension legislation may still limit the rights of certain suspects, under Boumediene, all detainees begin with the basic right to habeas corpus.

Ultimately, the ruling sets an imposing precedent for future treatment of detainees; however, it demonstrates the important fact that even while protecting the nation, it is possible and therefore essential to uphold basic human rights. To lose sight of this is to lose sight of the very principles that we are attempting to protect.

- JK

p.s. After an eight-month investigation, McClatchy has just published a remarkable study of detainee treatment in Guantanamo; it includes interviews with over 66 detainees and I'd encourage anyone who's interested to read it!