Legal Analysis: Boumediene v. Bush/Al Odah v. United States

In February 2002, the Center for Constitutional Rights and our co-counsel brought the first habeas case in federal court on behalf of detainees held at Guantánamo. Initially, the Bush Administration successfully argued that the detainees were in a legal black hole, without any right of access to the federal courts to challenge whether they were lawfully held. Two years later, in Rasul v. Bush, the United States Supreme Court ruled that our clients’ habeas cases could go forward under the federal habeas statute, but Congress attempted to overturn the decision with a series of laws, the Detainee Treatment Act (DTA) in 2005 and the Military Commissions Act (MCA) in 2006, that amended the federal statute to eliminate habeas jurisdiction for any “enemy combatant” held in U.S. custody.  As a substitute for habeas review, the amendments created a much more limited review proceeding in the Court of Appeals for the District of Columbia for individuals to challenge only the military’s classification of them as “enemy combatants.”  CCR argued that the truncated DTA process fell fall short of habeas and could not correct the plethora of due process violations that occurred during the Combatant Status Review Tribunals (CSRTs) at Guantánamo.

Today, the United States Supreme Court ruled that the part of the Military Commissions Act that attempted to block the federal courts from hearing the claims of our clients at Guantánamo was unconstitutional.  In an historical decision, the Court unambiguously rejected the political branches’ attempts to cut the federal courts out of the process.   In Boumediene v. Bush, the Court held that the Center’s clients detained at Guantánamo have a constitutional right to file petitions for habeas corpus in U.S. federal court challenging the lawfulness of their detention.

With Justice Kennedy writing for the majority, the opinion begins with a lengthy survey of historical habeas cases in which common law courts considered cases of noncitizens imprisoned without trial.  Acknowledging the uniqueness of the Administration’s practices at Guantánamo, the Court found that no historical habeas case offered by either side was directly on point and, instead, turned to the fundamental principles underlying the purpose of habeas corpus: to allow the courts to act as a check against the abuse of Executive power.  “[F]rom an early date, it was understood that the King, too, was subject to the law.”  The Court emphasized that the Suspension Clause of the U.S. Constitution was designed by the Founders to “protect against the cyclical abuses of the writ by the Executive and Legislative Branches.”  It noted that the “Framers view freedom from unlawful restraint as a fundamental precept of liberty.”  And central to the protection of this liberty is the “duty and authority of the Judiciary to call the jailer to account.”  These separation-of-power principles guided the Court’s reasoning throughout its opinion.

In considering the extraterritorial application of the Constitution to Guantánamo, the Court adopted a practical approach it has applied in past cases.  The Court strongly criticized the President and Congress’s attempt to declare that because Guantánamo was outside the sovereign territory of the United States, the Constitution did not apply.  The Court firmly stated that “To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say ‘what the law is.’” Several factors warranted application of the Suspension Clause to Guantánamo, including (1) that the petitioners are noncitizens who dispute their status as “enemy combatants” as determined by CSRTs in an unfair proceeding, (2) the United States exercises exclusive jurisdiction and control over Guantánamo, with no other country’s laws applying, and (3) no credible arguments exist that habeas proceedings would impede any military mission at Guantánamo.  The Court concluded that the individuals at Guantánamo have a right under the Suspension Clause to challenge their detention, and the pragmatic approach it took in reaching that conclusion still leaves space for similar challenges to U.S. detention facilities elsewhere in the world.

The Court then concluded that the DTA review was not an adequate substitute for a habeas petition.  Fundamentally, a habeas proceeding – and any substitute – must afford the petitioner an effective and meaningful ability to correct any errors in the decision under review (here, the determination that the petitioner is an “enemy combatant”), an opportunity to challenge the sufficiency of the government’s evidence, and the opportunity to present and have a court consider exculpatory evidence not considered by the tribunal below.  From the initial proceedings in pending DTA cases and the statute itself, the Court concluded that it failed to provide an adequate substitute for habeas. Specifically, the DTA statute fails to provide for release from custody as a remedy, offers no procedures for petitioners to present new, exculpatory evidence and to bring the full range of legal challenges available in a habeas proceeding.  As a result, the Court struck down that portion of the DTA that deprived the petitioners of their constitutional right to habeas.

Throughout the opinion, the Court heeded the Center’s emphasis on the lengthy imprisonment of our clients without trial.  “The gravity of the separation-of-powers issues raise by these cases and the fact that these detainees have been denied meaningful access to a judicial forum for a period of years render these cases exceptional.”  The Court refused to countenance further delay of the merits of the detainees’ challenges to their imprisonment.  Rather than wait for the Court of Appeals to rule on the lawfulness of the DTA proceedings or attempt to construe the DTA in a manner that rendered it constitutional, the Court brought much needed finality to this drawn-out struggle.  “[T]he cost of delay can no longer be borne by those who are held in custody.  The detainees in these cases are entitled to a prompt habeas corpus hearing.”

Two dissenting opinions written by Chief Justice Roberts and Justice Scalia capture the viewpoints of the conservative wing of the Court that the prisoners at Guantánamo are not entitled to the writ of habeas corpus, and that the rights to which they are entitled are fully satisfied by the review mechanism Congress established in the DTA.

Chief Justice Roberts’ dissent asserts that Congress has designed a system that protects “whatever rights the detainees may possess,” and that the Court should therefore not even be reviewing this case.  Repeating one of the military’s favorite (and inaccurate) talking points, the Chief Justice began his dissent by saying “[t]oday the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.”

Justice Scalia’s dissent asserts further that “aliens abroad” are not entitled to the protection of the writ of habeas corpus, and never have been.  Going a step beyond the Chief Justice’s dissent, Justice Scalia contends that the Suspension Clause has no relevance for the prisoners at Guantánamo, and thus the majority’s intervention cannot be justified.  Notably, Scalia begins his dissent with a rare exploration of what he perceives to be the “disastrous consequences” of the majority’s decision, including the astonishing assertion that “It [the majority opinion] will almost certainly cause more Americans to be killed.”

Justice Kennedy, the majority opinion’s author, has a reputation for pragmatism that comes forth in today’s opinion, which is rooted in a sound practical sense and firmly depoliticizes the legal questions raised by Guantánamo. The decision today allows courts to do what they do best: to decide whether the government has the right to hold someone in detention, sorting out claims of factual innocence by weighing the evidence.

We hope that the lower courts will quickly move to hold hearings in the 200-odd pending individual habeas corpus cases where detainees are challenging their indefinite detention without charges. Already, today, the Chief Judge of the District Court for the District of Columbia has called for a meeting of the judges to determine how to proceed.  Numerous lawyers filed notices and motions today in pending habeas cases to move them forward immediately.  We anticipate that many of these cases will be decided swiftly because the government lacks any factual or legal basis for imprisoning the men.  Without today’s decision these men might have remained in detention forever without ever having a real chance to argue for their release before an impartial court. With habeas these men – so many of whom have been officially cleared for release by the military – would never have been locked up and abused because no court was watching. We believe the majority of them will be released once the executive is forced to show up in front of a federal judge and justify their detention with hard evidence.

The decision’s impact upon the pending military commission cases is indirect. It is likely those trials will continue to progress at their current halting pace. Today’s opinion only means that the defendants in those commissions proceedings – less than 20 men are currently charged – may commence parallel proceedings arguing that they should not have ever been detained in the first place.

Other significant issues may be litigated as well: most detainees are being held in solitary confinement, including dozens who are cleared for release; most are losing their minds as a result. In habeas proceedings, petitioners should be able to argue for more humane conditions of confinement.  Many detainees are also cleared for release to countries where they may face torture; these men are basically in the position of refugees and countries that can offer them asylum will have to be found before they can be released.  A significant issue for the habeas cases will also be challenges to the government’s reliance upon information obtained through torture or unlawful coercion to justify the detentions.

Major General Jay Hood, former commander at Guantánamo, admitted to the Wall Street Journal that “[s]ometimes we just didn't get the right folks,” but innocents remain at the base because “[n]obody wants to be the one to sign the release papers. ... there's no muscle in the system.” Historically, the federal courts have been that muscle. Today’s decision ensures that they will be.

Ultimately, the administration’s strategy with Guantánamo was to run out the clock and leave its mess – much like the war in Iraq – to the next president to clean up. Today’s decision – a historic victory for Executive accountability to the courts – will, we hope, prevent this administration from doing so.