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The Washington Independent
The Washington Independent

Boumediene: Victory of Law

Iram Martins
Last updated: Jul 31, 2020 | Jun 13, 2008

Image has not been found. URL: /wp-content/uploads/2008/09/scotus2.jpgU.S. Supreme Court (WDCpix)

The Supreme Court’s decision in Boumediene v. Bush – available with supporting material here is a curious blend of exasperation at executive branch hypocrisy and judicial hesitation to push too hard at the bar of justice. The result is a certain victory for the rule of law — but a new and unfortunate sort of uncertainty for the 270 detainees in the Cuban island prison.

Critically, the Boumediene decision leaves open many questions about how the Guantanamo detention facility can be wound down. But because the opinion imposes few practical constraints on the Bush administration’s ability to filibuster habeas cases, there is a risk that the White House and Dept, of Justice will continue to delay fair resolution of the detainees’ claims until after the November election, when it all becomes someone else’s problem.

Image has not been found. URL: http://www.washingtonindependent.com/wp-content/uploads/2008/09/scales-150x150.jpgIllustration by: Matt Mahurin

Yet, at the threshold, the victory on Thursday for the rule of law should not be underplayed.

Since January 2002, the Justice Dept. and the White House have taken the position that courts have no power to review detention operations housed at Guantanamo.

Applied to battlefield captures in wartime, this claim may have seemed unremarkable. But the Guantanamo detentions broke new ground in two important ways. First, the administration declined to use battlefield screening hearings to sift actual combatants from innocent bystanders. In the diffuse and wide-ranging Afghan conflict, this inevitably led to erroneous detentions.

Second, Guantanamo was not limited to battlefield detentions. Some, like the petitioner Boumediene himself, were snatched from the peaceful streets of countries like Bosnia and Gambia, where there was no active war.

These two innovations meant that it was far from clear that all those at the base could be properly detained under international law. Compounding the illegality of detention at the base was the constellation of harsh interrogation practices and brutal treatment to which detainees have reportedly been routinely subjected.

All told, foolish mistakes and criminal brutality racked up to a heavy toll on the international reputation of the United States.

But the Supreme Court ruled in 2004 that the detainees did have a right, under federal statutes, to challenge their detention in habeas corpus. Then the administration went twice to limit the detainees’ right to invoke habeas corpus — protected in the original 1789 text of the U.S. Constitution — to challenge their detention. Thursday’s decision invalidates entirely the jurisdiction-stripping provision of the 2006 law, the Military Commissions Act, or MCA.

The core of the Thursday decision is twofold.

First, the court held that the Constitution guarantees the availability of habeas corpus to the Guantanamo detainees. As Justice David Souter noted in his concurrence, this outcome was clearly prefigured in the 2004 decision and ought to have come as no surprise to the administration. Only by deliberately blinking this clear signal could the administration and its allies continue to disregard the rule of law. And they should not be expressing any surprise at the court’s decision.

Second, the court rejected the argument that Congress had created an adequate alternative to habeas review in what is known as the Detainee Treatment Act, or DTA. While the court enumerated several core differences, most critical was the fact that in habeas, prisoners have the right to make factual challenges — whereas in the administration’s proposed outcome, factual challenges would be constrained.

Indeed, under the DTA, a detainee would only go to the court of Appeals, a tribunal with no power to make factual findings. In habeas, by contrast, the detainee will have a hearing in a district court, which routinely settles questions of fact through the examination of evidence.

This shift of forums is crucial, because it means the administration’s factual claims will be subjected to independent scrutiny. Since some of its claims are likely grounded on evidence gathered through coercion or torture, it seems likely they could founder.

Justice Anthony Kennedy’s majority opinion is remarkable for its note of genuine exasperation at the administration, which is evident throughout.

Describing the availability of habeas corpus, Kennedy cautions that it “must not be subject to manipulation by those whose power it is designed to restrain.” Rejecting the government’s arguments about military necessity, he finds “no credible arguments that the military mission at Guantanamo would be compromised” by habeas. And rejecting the notion that the court should let the DTA review procedures be played out, he rightly underscores the “exceptional” nature of the situation of Guantanamo, with its years-long detention.

The net result is a decisive reputation of the administration’s assertions of lawless zones, of detentions based on facts conjured at the whim of an interrogator and of absolute executive discretion.

However, there is much that the court did not address—and its silences may end up being as important as what it did say.

First, the court did not take up the detainees’ invitation to define the bounds of the government’s detention power. Critically, though, the court did say this power rests on federal statutes — rejecting, by implication, the administration’s fiercely argued contention that it has an inherent, and open-ended, constitutional power to detain people for national-security reasons.

This silence means that the district courts must now grapple in individual cases with thorny questions of the bounds of detention power. Each district court determination will be subject to appeal, first to the D.C. Circuit Court of Appeals. And second to the Supreme Court. It’s not hard to see that this is unlikely to be a brief process.

Second, as Chief Justice Roberts noted in his dissenting opinion, the habeas process on remand is “unsettled.” This means there will be plenty of opportunities for government lawyers to filibuster on threshold questions. While the court indicated its impatience with the long detentions, it did not signal clearly that additional delaying tactics ought not to be tolerated.

The result is that while the principle of legality—the idea that the law always applies—is affirmed, its exercise may be delayed. While we can celebrate the rejection of the extreme positions that the administration has cultivated since January 2002, the risk remains that this promise will remain abstract for too many of the detainees.

But principle can and should become facts on the ground. The Washington district courts have already indicated their intent to move forward, and have convened a conference of the lawyers. These courts should recognize the Supreme Court’s intolerance of executive hypocrisy and shilly-shallying. They should move swiftly to vindicate in practice the rights and ideals that the Supreme Court affirmed in its Thursday ruling — deciding they could not be withdrawn under the rule of law.

  • Aziz Huq directs the liberty and national security project at the Brennan Center for Justice at New York University School of Law. He is the co-author, with Fritz Schwartz, of “Unchecked and Unbalanced:Presidential Power in a Time of Terror.” He has written for New York Law Journal, The Washington Post and The Huffington Post.*
Iram Martins | Personal trainer. Aspiring sommelier. Brunch critic who works part-time. When I'm not competing, you'll find me at dog beaches with my black lab or sipping drinks at the best bars in town. I like to fly a lot.


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