Boudmediene v. Bush, 553 U.S. 723 (2008)

Boudmediene v. Bush, 553 U.S. 723 (2008)

Facts—Boumediene, Al Odah, and other foreign nationals who were captured by U.S. military forces in Afghanistan, Bosnia, and Gambia were being held at the U.S. base in Guantanamo, Cuba. They were tried by the Combatant Status Review Tribunals (CSRTs) to see if they were “enemy combatants.” The deputy secretary of defense established these tribunals after the Court decided in Hamdi v. Rumsfeld (2004) that they were entitled to due process. Rasul v. Bush (2004) had further established that habeas corpus jurisdiction extended to Guantanamo. The Detainee Treatment Act of 2005 (DTA) had ruled that courts did not have habeas corpus jurisdiction over aliens detained at Guantanamo, and when the Court ruled in Hamdan v. Rumsfeld (2006) that this limitation did not apply to pending cases, Congress adopted new regulations MCA Section 7, limiting such jurisdiction.

Questions—Does MCA Section 7 deny federal courts jurisdiction to hear habeas corpus actions pending at the time of its enactment? If so, is this constitutional?

Decisions—Yes; no.

ReasonsJ. Kennedy (5–4). The language of the statute makes it clear that Congress intends for the law to apply to pending cases. In determining whether this violates the Suspension Clause, the Court had to examine the effect of the petitioners’ status as enemy combatants and their location at Guantanamo Bay. Kennedy observed that the writ of habeas corpus was one of the few liberties that the Constitution included prior to the adoption of the Bill of Rights, which he traced back to the Magna Carta and through the Petition of Rights (1627), and the Habeas Corpus Act of 1679. Article I, Section 9 of the Constitution specified that “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.” During ratification debates, Edmund Randolph called this “an ‘exception’ to the ‘power given to Congress to regulate courts.’” Under common law, “a petitioner’s status as an alien was not a categorical bar to habeas corpus relief,” but the precise range of the writ is more difficult to determine. Petitioners thought the Court should note that English jurisdiction extended to the Channel Islands and India, and the government noted that it did not apply to Scotland and Hanover, but there were differences that made direct analogies difficult.

Moreover, the historical record was simply not complete. The U.S. contends that Guantanamo is not within its sovereignty, but while this may be true of de jure sovereignty, it does not appear to be true of de facto sovereignty over an area where there are no rival courts. The Constitution recognized that the U.S. would acquire territories, and it extended protection to individuals who inhabited them in the Insular Cases. In Reid v. Covert, it further extended protection to American citizens abroad. In Johnson v. Eisentrager (1950), the Court had limited habeas corpus juris- diction to enemy aliens at the Landsberg Prison in Germany, but the U.S. did not exercise the same sovereignty there that it did at Guantanamo. Ultimately, these cases established that “questions of extraterritoriality turn on objective factors and practical concerns, not formalism.” The government’s approach raises serious separation-of-powers concerns that cannot be contracted away. Here the petitioners are not U.S. citizens, but they dispute their status as enemy combatants. The CSRTs provide only limited review and “fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review.”

Detainees have a “personal representative” but not a lawyer to represent them. Confinement makes it difficult for detainees to present evidence. Moreover, there are differences between the status of the detainees here and those at the Landsberg Prison. Although the Court has never before held “that noncitizens detained by our government in territory over which another country maintains de jure sovereignty have any rights under our Constitution,” this conflict is now the longest in U.S. history and the U.S. clearly has de facto control over Guantanamo. “If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause.” Congress has flexibility in interpreting habeas corpus procedures, but the process it has substituted here is inadequate. It has limited the authority of the Courts of Appeal simply to ascertaining whether CSRTs complied with procedures established by the secretary of defense. Moreover, the initial determination of enemy combatant status has been made by the executive rather than by a judicial process. Although the government argues that its procedures comply with the decision in Hamdi, that case did not deal specifically with the suspension of the writ. The “closed and accusatorial” nature of CRTS proceedings magnify the risk of error. The current mechanism offers inadequate redress for cases where new evidence emerges after initial CSRT hearings. Detainees need to have access to habeas corpus review by U.S. district courts, especially in cases where individuals have been detained for six years or more. Congress is free to channel such appeals to a specific district court.

J. Souter, concurring, thought that the Court had given a clear indication of its position in Rasul v. Bush. He further emphasized the length of time that the detainees had been in custody.

C.J. Roberts, dissenting, objected to the Court’s substitution of its own “shapeless procedures” for those that Congress had already established. He further questioned whether the detainees had exhausted available remedies before coming to the Court. He believed the CRST procedures “meet the minimal due process requirements outlines in Hamdi,” and that the Court should see how they work before invalidating them. The majority decision would simply add additional lawyers to an already cumbersome process. The Court should give greater deference to military habeas corpus proceedings than to others. The majority’s concern about the discovery of new evidence can be met under existing procedures by remanding the case for a new determination. The majority has further failed to clarify exactly how the remedies it requires will differ from those in place. It has exiled the Great Writ “to a jurisdictionally quirky outpost, with no tangible benefit to anyone.”

J. Scalia, dissenting. The writ of habeas corpus should not be extended to aliens abroad, and this decision is likely to have “disastrous consequences” on the war on terror. Enemy detainees are dangerous, and some who have been released have engaged in terrorist acts. The decision is contrary to that in Johnson v. Eisentrager, because the United States does not maintain sovereignty over Guantanamo. The decision is based on “an inflated notion of judicial supremacy,” contrary to the original understanding of the Suspension Clause. “The Nation will live to regret what the Court has done today.”

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