Boumediene v. Bush: The Suspension Clause and Guantanamo Bay
Boumediene v. Bush, 533 U.S. ___, 2008 U.S. LEXIS 4887.
In the Authorization for Use of Military Force, Congress empowered the president to use all needed and proper force against persons he determined had planned, authorized, committed, or aided the 911 terrorist attacks. The Supreme Court recognized that detaining persons captured in Afghanistan during that conflict was an accepted incident of war. [1] Thus, the Defense Department established Combat Status Review Tribunals to determine whether persons captured overseas, and detained at the Guantanamo Bay Naval Station, were "enemy combatants."
Detainees denied being enemy combatants and petitioned federal courts individually for writs of habeas corpus. Some cases were dismissed, some were not. During the appeals, Congress passed the amended Detainee Treatment Act (DTA). [2] The Act prohibited any court from considering a writ of habeas corpus petition, or "any other action relating to...the detention, transfer, treatment, trial, or conditions of confinement of an alien" detained by the Defense Department at Guantanamo Bay, Cuba. The DTA gave the U.S. Appeals Court for the D.C. Circuit exclusive jurisdiction to review decisions of the Status Review Tribunals. But the Appeals Court could review only whether the standards and procedures set by the Defense Department had been followed and whether their use followed the Constitution and federal law.
The D.C. Court of Appeals concluded that the DTA prohibited any court from considering the detainees' habeas corpus petitions, and that the detainees were not entitled to habeas corpus protection or protections of the Suspension Clause. The Supreme Court accepted review of the consolidated appeals.
Habeas Corpus is an extraordinary writ. A writ is a court's written order commanding the addressee to do or not do some act. [3] An "extraordinary" writ means a court exercises unusual or discretionary power in issuing it. [4] The petition for the extraordinary writ is an independent separate case. Typically, a petition for writ of habeas corpus asks the court to determine the legality of a person's detention. [5]
Historically, the habeas corpus writ let common law courts enforce the king's prerogative to inquire into the authority of a jailor to hold a prisoner. [6] Habeas corpus formed the driving force behind the separation of powers by securing personal liberty and governmental accountability. [7] Thus, the separation of powers defends against tyranny. [8] The doctrine protects citizens and those foreign nationals having the privilege of litigating in U.S. courts. [9] The writ's extraordinary nature demands that a petitioner exhaust all ordinary remedies before seeking it. Courts may modify the procedures to address practical matters and barriers. [10]
The Constitution states that, "The privilege of habeas corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." [11] According to Edmund Randolph, that "Suspension Clause" made an exception to Congress' power to regulate the courts. [12] In WWI, England allegedly abused the suspension of habeas corpus by withholding it from "anyone suspected of communicating with the enemy." [13] The Suspension Clause protected against those "cyclical abuses." [14]
1. Could foreign nationals apprehended and detained in foreign territory during a serious threat to national security assert habeas corpus?
Not normally. But no precedent showed whether a court would have refused to hear a habeas corpus petition by a prisoner deemed an enemy combatant under a standard like the DTA in a territory like Guantanamo Bay, where the government had total military and civil control. [15] Cuban courts lacked jurisdiction to hear the claims, and only U.S. law applied at the naval station. [16] English history provided no clear analogy either. That might be expected given the war on terrorism's unique nature.
2. Did the U.S.' lack of formal sovereignty over the detention site leave the detainees without a habeas corpus privilege?
No. The U.S. leased Guantanamo Bay from Cuba in 1903. The lease let Cuba keep ultimate sovereignty over Guantanamo Bay, while the U.S. exercised complete jurisdiction and control. [17] But the treaty of 1934 effectively let Cuba exercise sovereign rights only if the 1903 lease was modified or the U.S. abandoned the base. [18]
The majority used sovereignty's narrow, legal definition: "a claim of right," meaning a state's lawful control and authority to apply law there. [19] Thus, Guantanamo Bay was a de facto territory, or "practical sovereignty" of the U.S. [20] The principle of formal sovereignty was subordinate to separation of power principles. [21]
Practical considerations in achieving justice also factored into the sovereignty analysis. For example, in Johnson v. Eisentrager (1950), [22] the prisoners were detained in Germany during the Allied Powers' post-WWII occupation. Ordering the government to produce the prisoners in a habeas corpus proceeding would require allocating shipping space, guarding personnel, and rationing. It would also damage the prestige of military commanders at a sensitive time. [23] That made habeas corpus unusable. The U.S. in Eisentrager also lacked legal sovereignty, and full control over, the prison in Germany. Eisentrager and other case law showed that "questions of extraterritoriality turn on objective factors and practical concerns, not formalism." [24]
Here, the U.S. had kept complete, uninterrupted control of Guantanamo Bay for a century. An abuse was apparent: "If the U.S. could surrender formal sovereignty over any unincorporated territory to a third party, and enter a lease granting total control of that property back to the U.S., then the political branches could govern without legal constraint." [25] The test for determining the scope of the Suspension Clause had to be free from manipulation by those whose power it meant to restrain. [26]
Eisentrager differed further from Boumediene because, though the detainees in Eisentrager lacked U.S. citizenship, they conceded their enemy alien status before bringing their habeas corpus cases. The legality of their detention had also been rigorously tested adversarial proceeding, meaning the charges contained detailed factual allegations, while the prisoners had the right to counsel, to introduce evidence, and to cross-examine prosecution witnesses. [27] The U.S. military also occupied a zone encompassing 18 million people, featuring potential security threats from a defeated enemy, while also supervising massive reconstruction and aid efforts. [28]
In the review tribunals at Guantanamo Bay, however, the detainees had right only to a "personal representative," instead of a lawyer or an "advocate." The DTA required the government's evidence be presumed valid, and the detainees could present only "reasonably attainable" evidence. [29] Moreover, the status review in the D.C. Court of Appeals left some defects in the proceedings uncured. [30] The Appeals Court decided only whether the review tribunal complied with the standards and procedures the Secretary of Defense had specified, and whether they were "used" lawfully or constitutionally. Therefore, the Supreme Court's holding in Eisentrager followed the previous "Insular Cases," in which the Court held that full constitutional protections could be inapplicable to territories the U. S intended to govern only temporarily.
Guantanamo Bay was "no transient possession." Practically, Guantanamo was under the constant jurisdiction of the U.S. [31] Although habeas corpus proceedings might divert military personnel from other pressing tasks and require spending government funds, nothing showed that giving habeas corpus courts authority to hear the detainees' claims would compromise the military mission at Guantanamo. [32] The Bay was not in a war theatre and Cuba presented no immediate threat to the base. Moreover, the court could modify habeas corpus procedures to address any practical barriers. [33] This war's particular nature made the sovereignty question unprecedented. [34] Thus, the Suspension Clause applied fully at Guantanamo Bay. [35] The detainees were entitled to the privilege of habeas corpus to challenge the legality of their detention. [36]
3. Did the DTA provide an adequate substitute for habeas corpus?
No. The majority first pointed out that the very lack of standards in the case law showed the care Congress had historically taken to protect the habeas corpus writ. The DTA gave the Appeals Court authority to decide only whether the review tribunal complied with the standards and procedures the Secretary of Defense specified, and whether those were used lawfully--as opposed to whether the detention itself was lawful. [37] The detainee must have a meaningful opportunity to show he is being held under an erroneous application of law. The detainees lacked that opportunity. [38] In turn, the Appeal's Court must be able to let the detainee introduce evidence previously unavailable or unknown to him and to order the detainee's release. Here, instead of the detainee's sentence resulting from a court of record and a fair adversary proceeding, it would result by executive order. [39]
What mattered was "the sum total of procedural protections afforded to the detainee at all stages, direct and collateral." [40] The DTA left the detainees unable to rebut effectively the government's factual basis for the enemy combatant classification. The detainee lacked counsel, had limited means to find or present evidence, and might not know critical allegations the government had relied on. The detainee could not confront witnesses or effectively challenge the admissibility of evidence. [41] That made the detainees' opportunity "more theoretical than real." [42]
The closed and accusatorial process carried an inherent risk of error. Where the error could cause persons to be detained for a generation or more, the risk became too significant to ignore. [43] A procedural substitute for writ of habeas corpus had to give the court the means to correct errors, to assess the sufficiency of the government's evidence, and to consider new exculpatory evidence. [44]
Under the DTA, the Appeals Court could not make factual findings. Moreover, the availability of a release remedy in the Appeals Court was purely presumptive. The detainee could not present new exculpatory evidence unavailable during the review tribunal. The procedure was record-developing rather than adversarial. [45]
4. Did the circumstances present prudential barriers to habeas corpus?
No. Some detainees had been detained for six years without judicial oversight. The DTA reviews would cause more delay and the government had shown no onerous burdens preventing it from responding to the habeas corpus actions.
Thus, the detainees could bypass their need to exhaust ordinary (DTA) remedies. The detainees were entitled to prompt habeas corpus hearings, even if they lost. [46] Regarding future detainees, absent undue delay, habeas corpus should be available to them only after the review tribunal. [47] Keeping the D.C. Circuit as the sole appeals jurisdiction would help prevent dissemination of information. [48] The Appeals Court should use its discretion to keep military matters unexposed. [49]
I agree. Therefore, I address the two dissenters.
Justice Scalia argued that, because the U.S. was in an ongoing conflict with Islamic extremists, and Guantanamo Bay was a foreign sovereignty, the Suspension Clause did not apply to the detainees.
I side with the majority in disagreeing with Scalia's argument that Guantanamo Bay is a foreign sovereignty. The president's de facto war against a de facto nation necessarily created a doctrine of de facto sovereignty. The president's attitude seems to be that the terrorists' chosen nature and tactics required the DTA procedures. Regardless of one's opinion on that, using the formal sovereignty principle to thwart the separation of powers is an unaffordable precedent. Under Scalia's rationale, the political branches could escape accountability and dodge formal sovereignty simply by surrendering territory to another country and then leasing it back. [50]
Chief Justice Roberts argued that because habeas corpus was procedural, the threshold question was whether the DTA protected whatever rights the detainees had. For one, did the review tribunals—coupled with the judicial review specified by the DTA—provide the "basic process" the court in Hamdi v. Rumsfeld (2004) [51] said the Constitution afforded American citizens detained as enemy combatants? [52]
Roberts also argued that, because the Appeals Court needed to consider the same information-dissemination problem that Congress considered, the court's procedures and modifications would resemble the DTA procedures anyway, spurning "fresh bouts of litigation." [53] The majority had merely shifted power to determine the procedures to the judiciary, a less competent branch for determining what procedures were needed to protect the American public. [54]
"But the habeas corpus the Court mandates will...end up looking a lot like the DTA system it replaces, as the district court judges shaping it will have to reconcile review of the...detention with the undoubted need to protect the American people from the terrorist threat—precisely the challenge Congress undertook in drafting the DTA. All that today's opinion has done is shift responsibility for those sensitive...decisions from the elected branches to the Federal Judiciary. [55]
Roberts also asserted that the DTA required the Appeals Court to consider whether the review tribunal had proceeded "consistent with the standards and procedures specified by the Secretary of Defense" and "whether the use of such standards and procedures to make the determination [was] consistent with the Constitution and the laws of the United States." [56] That supposedly satisfied judicial review because a court would determine the review tribunal procedures' constitutionality and flaws. [57] Moreover, Roberts argued that the detainees had caused their own delay by not requesting the review tribunal procedures. [58]
Lastly, Roberts argued that the DTA achieved a proper substitute for habeas corpus because the review tribunal operated like a habeas court: "They gather evidence, call witnesses, take testimony, and render a decision on the legality of the Government's detention." [59] The tribunal could also order release. [60] The only way to know if the review tribunals satisfied due process was to use the alternative procedures Congress designed. [61] Therefore, the detainees needed to exhaust the review tribunal remedy before seeking habeas corpus relief. [62]
The Supreme Court in Hamdi held that a citizen detainee challenging his enemy combatant status must receive notice of the factual basis for his classification and a fair opportunity to rebut the government's factual assertions before a neutral decision-maker. The court noted that the exigencies of the circumstances could require accepting hearsay evidence from the government, a presumption in favor of the government's evidence, and a fair opportunity to rebut it. Once the government presented credible evidence, the burden would shift to the detainee to rebut it with more persuasive evidence showing that he fell outside the criteria for enemy combatant status. The Court dictated that threats to military operations posed by an independent review did not trump a citizen's core rights to challenge meaningfully the government's case before an impartial adjudicator. [63] The "some evidence" standard was a standard of appellate review, not a standard of proof. [64] Nor could the evidence simply be presumed correct. [65] Affidavit evidence would be acceptable if it let the detainee present his factual case in rebuttal. A district court should proceed prudently and incrementally.
The Hamdi court bypassed the right to counsel question because, on remand, the detainee would have the right to counsel and he was already being granted unmonitored meetings with his lawyer.
That last fact alone should show that the detainee having access to independent legal counsel is fundamental to the whole process. It also implied that a right to counsel is workable. (Roberts joined the majority opinion in Hamdi.) The Supreme Court in Hamdi would never have approved of limiting the detainee to a "personal representative," however impartial and helpful that person might theoretically be. But more on that later.
Hamdi addressed only whether detaining citizens falling within the definition of "enemy combatant" was authorized. [66] An enemy combatant was an individual who "part of or supporting forces hostile to the United States or coalition partners in Afghanistan...engaged in an armed conflict against the United States." [67] The Supreme Court confirmed that Congress had authorized the detention: "We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use." (That should show that the Suspension Clause would be inapplicable to non-citizen detainees captured and detained in Afghanistan or Iraq. The Supreme Court decided Boumediene only under the fact that the detainees were detained at Guantanamo Bay.)
But the Hamdi court qualified the holding by saying that perpetual detention--as might practically occur in the indefinite nature of the current conflict--would not invoke the laws of war. [68] The court saw the particular situation in Afghanistan to fall under the type of conflict that did invoke the laws of war. [69] Thus, Hamdi does not stand for the proposition that all alleged enemy combatants detained at Guantanamo Bay are war prisoners in the original sense the laws of war intended. At the very least, the president cannot suspend habeas corpus for every alleged non-citizen enemy combatant seized from anywhere and detained at Guantanamo.
The DTA does not parallel Hamdi's criteria
As a whole, the DTA also lacks significant parallel to Hamdi's basic criteria. For example, Hamdi stated that a circumstance could arise requiring a rebuttable presumption in favor of the government's evidence that permits effective rebuttal once the government presented credible evidence. That differs critically from the DTA's requirement that "the government's evidence shall be presumed valid." Even if the Appeals Court can asses the constitutionality of the "use" of the Secretary's procedures and standards, the DTA, viewing its restrictions and presumptions as a whole, simply defaults to the "some evidence" rule deemed improper in Hamdi. To now say--after six years for some detainees--that the DTA and the Secretary's procedures are an effective substitute, and can all be cured by constitutional review in the Appeals Court anyway, merely sets the stage for an interminable cat-and-mouse game between the branches-- with time favoring the military. The Appeals Court will keep declaring the procedures invalid while the president will keep moving words around to achieve his desired result. The military may be best qualified to determine and assess procedures, but how many chances does the executive get before the court must step in and take the responsibility?
Roberts argued that the majority misinterpreted the statutory scheme's apparent restrictions, further justifying exhaustion of the review tribunal remedy. But the detainee's right only to a "personal representative" is so fundamentally damaging to the detainee that Roberts' argument, even assuming his assertions as true, fail by it.
Limiting the detainee's counsel to a "personal representative" presumably prevents the detainee or his lawyer from knowing, and then disseminating, classified information that will aid the enemy. The president has ostensibly tried to give the detainee enough help to protect his rights while letting the military keep vital information classified.
I appreciate the compelling interest. But the sheer fundamentality of the need for effective legal counsel makes the government's interest and the detainee's right mutually exclusive in the government's view. A non-lawyer, litigating under the DTA--much less a foreign national who does not speak English natively and likely was raised in a totalitarian culture--cannot hope to present his evidence, or respond to the military's evidence, optimally without trained, devoted legal counsel. That holds especially in a proceeding where the military's need to withhold information can be an unverifiable excuse for withholding any evidence it chooses--even information aiding the detainee in a collateral way unclear to the military. Even without ill-intent in withholding information, the military cannot be the sole judge of how weighty the information might be to either side. Only under the most fortunate circumstances can a non-represented litigant, testifying half a world away from the arrest site, hope to rebut the foreign government's presumably valid evidence about his enemy combatant status.
Thus, a substitute proceeding for habeas corpus requires at least the right to independent legal counsel. That right being discrete combined with the military's insistence on the detainees lacking it, the DTA cannot balance the competing interests. Arlen Specter's amicus brief cited lack of independent defense counsel first in his list of problems with the review tribunal, finding the restriction fatal. "[T]he lack of counsel as the [review tribunal] purports to sort out the facts injects a persistent taint that undermines the adequacy of the D.C. Circuit's review." [70]
Because the DTA prohibited independent legal counsel, I disagree with Roberts' assertion that the combined review tribunal and judicial review by the Appeals Court satisfy whatever rights the detainee has, or that that procedure had to be exhausted. Considering their circumstances, until they have legal counsel, the detainees are only partially to blame for omitting the request for a DTA procedural review. For example, only trained legal counsel likely could have adequately explained the potential habeas corpus option to the detainee. Moreover, a detainee should be excused from requesting a review tribunal that has the earmarks of a Star Chamber. Because the DTA's infirmity has caused undue delay, the majority reasonably put the burden on the Appeals Court to cure the problem of leaked information. Presumably, the majority bypassed making specific suggestions because that would require pretrial conferencing, where both sides can present input.
The strongest precedent favoring the dissents is probably Ex Parte Quirin. [71] There, U.S. Supreme Court held: "The Constitution...invests the President...with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war." [72]
In Quirin, eight German men were commissioned by the German Reich in WWII to enter the U.S. discreetly and commit acts of sabotage. All of the men except one were non-citizens of the U.S. The men landed on the Long Island shore in uniform, but changed into civilian clothes. They also buried explosive devices, etc., on the beach for later retrieval. Before any of the men could commit sabotage, two of them willingly revealed the plan to the F.B.I. The other six men were apprehended. The German saboteurs admitted their enemy alien status and were assigned attorneys.
Three weeks after their capture, the president appointed a Military Commission to try the men for "offenses against the law of war and the Articles of War, and prescribed regulations for the procedure on the trial and for review of the record of the trial and of any judgment or sentence of the Commission...."[A]ll persons...subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States...and are charged with committing or attempting or preparing to commit...hostile...acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals." [73] Those persons would be denied access to the courts. [74]
The military conducted brief tribunals and sentenced all of the men to death except the two who squealed. Those two men received lesser sentences. The Germans petitioned the U.S. Supreme Court for writs of habeas corpus. The writs were denied, and the executions and other sentences were carried out.
Ostensibly, that might fit the scenario in Boumediene. Here, Congress passed a law similar to that passed in 1942, involving a military tribunal without a habeas corpus right, and with procedures determined by the military. The DTA is even more benevolent than the law passed in 1942 by allowing an appeal right. Realistically, however, the cases differ markedly.
In Quirin, the prisoners admitted the facts leading to their "unlawful combatant" classifications. [75] They fully admitted that they had been acting for, and been trained by, the German Reich, had landed on American soil, in German uniform, then discarded their uniforms, and set out secretly, in civilian dress, to cause acts of sabotage on American soil. [76] That differs significantly from individuals who never had a uniform, were apprehended far from American soil, and who disputed all allegations that they ever aided, or were trained by, a non-sovereign terrorist network. Moreover, each prisoner in Quirin had independent legal counsel and the proceedings were adversarial. Those very distinctions distinguish the cases. The risk of error under the procedures used in the DTA far surpasses the risk of error under the procedures used in Quirin.
The Quirin court reiterated that, "It is that each petitioner, in circumstances which gave him the status of an enemy belligerent, passed our military and naval lines and defenses or went behind those lines, in civilian dress and with hostile purpose."
So where exactly are our lines and defenses located in this "War on Terror?" We could define the German Reich in World War II. But how exactly do we define "al Qaeda" and operatively assess "aid" to that entity? I understand that we are engaging in fourth generation warfare. Unfortunately, that results in the conflict's duration being highly indefinite, and the enemy's parameters defined more conceptually than formally. The president cannot sell the American public on fourth-generation warfare, then wonder why the principles of second-generation sovereignty do not apply to it.