Greetings, Court Fans!
The Court is finally hitting its stride – after giving us four opinions Monday, they hit us with five more yesterday. We’re still working on Monday’s summaries, but one of yesterday’s announcements, as you’ll see, was a little too momentous to put off . . . .
In Boumediene v. Bush (06-1196), the Court held 5-4 that detainees at Guantanamo Bay (“GTMO”) have a constitutional privilege of habeas corpus that cannot be withdrawn absent a formal suspension of the writ under the Suspension Clause – and therefore the Military Commissions Act (“MCA”), which purports to cut off habeas to these detainees, is unconstitutional. Trying to summarize the background of this case would take a small novel, but here goes: In Hamdi v. Rumsfeld (2005), the Court held that the detention of enemy combatants from Afghanistan at GTMO was a fundamental incident of the war on Al-Qaeda, though detainees were still entitled to some measure of due process. Thereafter, the Defense Department set up Combatant Status Review Tribunals (“CSRTs”) to determine whether a given detainee was, in fact, an enemy combatant, and to attempt to provide due process to satisfy Hamdi. Various detainees found to be enemy combatants filed habeas petitions to challenge their detentions. These cases first were dismissed on the ground that there was no habeas jurisdiction because GTMO was outside the sovereign territory of the United States, but the Court reversed that ruling in Rasul v. Bush (2004). Thereafter, Congress passed the Detainee Treatment Act (“DTA”), which purported to strip federal courts of habeas jurisdiction over detainees, but the Court ruled in Hamdan v. Rumsfeld (2006) that the DTA was forward-looking only – i.e., it did not apply to already pending cases. Congress responded by passing the MCA, which unequivocally stripped the federal courts of jurisdiction over habeas applications “pending on or after the date of enactment” and filed by detainees, captured after September 11, 2001, who had been found to be enemy combatants (or are awaiting such a finding). The D.C. Circuit held that this stripped federal courts of jurisdiction over the petitioners’ habeas applications, and that the petitioners had no constitutional right of habeas corpus, so it dismissed their applications.
And now the Court has reversed, with Justice Kennedy – ever the essential Justice – joining the more liberal Justices and writing for the majority. The Court first held that the MCA did indeed strip federal courts of jurisdiction over post-September 11 enemy combatant habeas petitions. (The petitioners had tried to argue that it did not, but the text was clear, especially given that the MCA was a direct response to Hamdan). That left the constitutional question: whether enemy combatants were entitled to the protections of the Suspension Clause (“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.”). The government contended they were not, because noncitizen enemy combatants held outside the United States have no constitutional rights and thus no habeas privilege in the first place. The Court, however, rejected a formal sovereignty test for the reach of the Suspension Clause, whereby constitutional protections would automatically end at the U.S. border, in large part due to separation-of-powers concerns demonstrated by GTMO. While the United States had surrendered formal sovereignty over GTMO to Cuba, it essentially got total control back from Cuba in its lease of the territory. Using a formal sovereignty test would allow the political branches to use such leases to “switch the Constitution on or off at will,” and “our basic charter cannot be contracted away like this.” Instead, the majority adopted a three-factor test for whether the Suspension Clause applied: (1) the citizenship and status of the detainees and the adequacy of the process used to determine that status; (2) the nature of the sites of apprehension and detention; and (3) the practical difficulties of resolving detainees’ entitlement to habeas. Here, the status of the detainees was disputed; they had been found to be enemy combatants, but the Court held that the limited protections provided by CSRTs were not enough to eliminate the need for habeas review. And while the detainees were caught and held outside the United States, GTMO, “in every practical sense,” was very much under U.S. control. As to the third factor, while recognizing some cost to applying the Suspension Clause to military detentions abroad, the majority saw no threat to the mission at GTMO or other practical obstacles to allowing the writ. Therefore, the Suspension Clause applied, and since the MCA did not purport to formally suspend habeas, the petitioners were entitled to the privilege.
That left the question, unresolved by the D.C. Circuit, as to whether the MCA nevertheless avoided a Suspension Clause problem because the CSRT review process in the Court of Appeals was an “adequate substitute” for habeas review. Rather than remand for the D.C. Circuit to address that issue, the Court reached it directly, holding that the review process was inadequate. While not giving a comprehensive description of what would be an adequate habeas substitute, the majority noted that it at least must allow a prisoner a meaningful chance to show that he was held pursuant to an erroneous application or interpretation of relevant law, and the reviewing body must be able to conditionally release an unlawfully detained individual. Here, the DTA has no provision by which detainees can request release, challenge the President’s authority to hold them indefinitely, contest the CSRT’s factual findings, or, most troublingly, supplement the record with evidence discovered after the CSRT hearing. These limitations were particularly problematic given the limitations inherent to the CSRTs themselves, which deny the assistance of counsel, give detainees only limited means to rebut the government’s factual claims, and have no limits on hearsay evidence. Even assuming good-faith operation of a CSRT, there is considerable risk of error that could lead to detention for “a generation or more.” This was too big a risk to ignore, and the DTA did not provide enough review to substitute for habeas.
Finally, the Court addressed some practical issues since its holding addressed only the MCA and left intact the DTA and CSRT processes. While a detainee need not exhaust the DTA review process in the D.C. Circuit before applying for habeas, the Court held that absent undue delay a federal court should refrain from entertaining the petition at least until after the CSRT has had a chance to rule on his status. Also, channeling future cases to one district court – for the District of Columbia – might make sense and reduce the burden on the government. Further, courts will need to accommodate the government’s legitimate interest in protecting intelligence sources and methods.
The four dissenters (the Chief and Justices Scalia, Thomas, and Alito) all joined in two separate dissents. The Chief wrote that the DTA process was adequate to protect any constitutional rights that alien enemy combatants captured and held abroad may possess. He criticized the majority for “cashiering” that review process before the D.C. Circuit even could pass on its adequacy (and before the detainees had exhausted their remedies by pursuing DTA review). He also noted that the Court had installed alongside DTA review a court-administered process that will have to define the rights of prisoners on a case-by-case basis. The Chief predicted that the process will wind up looking a lot like the DTA system, but it will have shifted responsibility for these sensitive foreign policy and national security decisions from the elected branches (where they belong) to the courts. Scalia addressed the more fundamental question of whether the writ of habeas corpus ran in favor of aliens abroad. For him the answer was an unequivocal “No.” Given the deference owed to the political branches in foreign affairs, the absence of historical precedent for extending the writ should have left the Court no choice but to affirm the D.C. Circuit. He rejected the majority’s functional test for the reach of the Suspension Clause, noting that the principal case on which it rested, Johnson v. Eisentrager (1950), refused to extend habeas protections to Germans held outside U.S. territory. He also wondered why, if the Suspension Clause applied extraterritorially, its conditions – rebellion or invasion – were domestic crises. For Scalia, the real source of the Court’s opinion was an inflated notion of judicial supremacy – an unwillingness to accept that there might be some parts of the globe where the political branches might have more say about the content of the law than the Court.
Finally, Justice Souter wrote a brief concurrence (that Justices Ginsburg and Breyer joined) noting that the long passage of time – six years, for some detainees – rebutted the Chief’s contention that the DTA process could meaningfully address the petitioners’ claims, as well as Scalia’s view that the Court’s opinion was an exercise in judicial triumphalism. Instead, it was really just an act of perseverance and an effort to make habeas review mean something for detainees and the Nation.
That’s probably enough for one e-mail, but we’ll be back with more shortly. Thanks for reading!
Ken & Kim
From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, or any other member of the Practice Group at 203-498-4400