Initial Thoughts on Boumediene Marty Lederman The U.S. Court of Appeals today by a 2-1 vote dismissed the pending habeas corpus petitons of hundreds of Guantanamo detainees. In an opinion by Judge Randolph, joined by Judge Sentelle, the court held (i) that the Military Commissions Act stripped the federal courts of the (statutory) habeas jurisdiction that the Supreme Court had recognized in Rasul v. Bush, and (ii) that this elimination of habeas was not unconstitutional. Judge Rogers dissented.



The Court's constitutional holding, in turn, is based on three propositions: (i) that the Constitution (the Suspension Clause, by implication) only protects the right of habeas corpus that was recognized at common law in 1789; (ii) that the common law in 1789 did not provide the right of habeas petitioning to aliens held by the government outside the sovereign's territory (and without property within that territory); and (iii) that GTMO is outside U.S. territory for constitutional purposes, notwithstanding that the U.S. has complete control over that facility.



I'm tied up with another project right now, so only have time for a few brief, preliminary reactions to the majority opinion:



1. The Court writes (page 14) that "[t]he Supreme Court has stated the Suspension Clause protects the writ 'as it existed in 1789,' when the first Judiciary Act created the federal courts and granted jurisdiction to issue writs of habeas corpus. St. Cyr, 533 U.S. at 301."



This is misleading. The Court held in St. Cyr that the Constitution protects the writ as it existed in 1789 "at the absolute minimum." Compare Felker v. Turpin, 518 U.S. at 663-664 (assuming for the sake of argument that "the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789"). The Court has not resolved this question, and thus it was a mistake for the D.C. Circuit not to reach it, even if the 1789 writ would not have extended to these alien detainees. [UPDATE: It's not an innocent mistake, either -- Judge Rogers calls them on it in note 5 of her dissent.]



2. The court appears to concede that if an alien detainee captured overseas is thereafter detained in sovereign territory, the detainee is protected by a constitutional right of habeas. (See its discussion of the Rex v. Schiever case from 1759, pages 14-15, in which the court entertained the habeas petition of an alien detainee brought to Liverpool.). What this means is this:



Recall that the GTMO detains were all captured halfway around the globe, and then brought to the Western Hemisphere. Thus, the only reason they are not entitled to habeas rights is that their U.S. captors chose to turn left and take them to the U.S.-run facility in GTMO, rather than turning right to go to a U.S. facility in say, South Carolina. Indeed, according to John Yoo's new book (and other sources), they were taken to GTMO precisely for the purpose of keeping them out of the reach of U.S. courts. Whatever the constitutional rule ought to be for aliens detained near a battlefield half a world away, it seems perverse, to say the least, that so many important constitutional protections should turn on which direction we choose to direct our ships (or planes) carrying detainees a few miles off the Florida coast.



3. Why doesn't GTMO count as U.S. sovereign territory for purposes of the rule Judge Randolph announces? After all, the U.S. has complete control over the territory. According to the court (pages 20-21), the reason is that the Detention Treatment Act of 2005 declares that the term "United States," "when used in a geographic sense . . . does not include the United States Naval Station, Guantanamo Bay, Cuba.” But that definition merely establishes a status for GTMO as a matter of statute (it explains what Congress was referring to when it used the term "United States" in the DTA). If a statute said that Boise, Idaho was not in the United States, that wouldn't place Boise outside of any constitutional protections limited to U.S. sovereign territory. So, too, here -- the court simply doesn't do the work necessary to determine whether GTMO falls within the rule it announces (even assuming arguendo that rule is correct).



Moreover, the court (at page 21) cites its 1977 decision in Ralpho v. Bell, 569 F.2d 607 (1977), in which the D.C. Circuit held that the Constitution does protect aliens living on the Micronesian island of Jaluit. Contrary to the court's suggestion in its opinion today, that island was not U.S. territory -- it was an island that we agreed to hold in trust. The court does not explain why Jaluit in the years after World War II is distinguishable from GTMO today for constitutional purposes. (Thanks to Gerry Neuman for this point.)



Prediction: This part of the opinion will not survive Supreme Court review. To see why, take a look at Justice Kennedy's opinions in Rasul and in Verdugo-Urquidez. The Court is not going to hold that the Executive branch can avoid the constraints of the Constitution merely by the "fortuity" of the fact that it opts to set up shop 400 miles off the coast of Florida. The constitutionality of the habeas-stripping will instead turn on the question of whether the D.C. Circuit review of CSRT detention decisions is an adequate substitute for habeas review (see Point 5, below), especially as applied to these detainees who have been held at GTMO for several years.



4. Although the holding of Judge Randolph's opinion apparently extends only to aliens held abroad, the logic of his opinion at page 16 suggests that even U.S. citizens held abroad would not be entitled to constitutional habeas protections:

When agents of the Crown detained prisoners outside the Crown’s dominions, it was understood that they were outside the jurisdiction of the writ. See HOLDSWORTH, supra, at 116-17. Even British citizens imprisoned in “remote islands, garrisons, and other places” were “prevent[ed] from the benefit of the law,” 2 HENRY HALLAM, THE CONSTITUTIONAL HISTORY OF ENGLAND 127-28 (William S. Hein Co. 1989) (1827), which included access to habeas corpus, see DUKER, supra, at 51-53; HOLDSWORTH, supra, at 116; see also Johan Steyn, Guantanamo Bay: The Legal Black Hole, 53 INT’L & COMP. L.Q. 1, 8 (2004) (“the writ of habeas corpus would not be available” in “remote islands, garrisons, and other places” (internal quotation marks omitted)).

(Just to be clear: The implication of the Randolph opinion is that Congress could abolish habeas rights for U.S. citizens detained at GTMO (or elsewhere outside the U.S.). The Supreme Court would never go for that -- perhaps not even a single Justice -- and in any event, section 7 of the MCA does not strip citizens of habeas rights: It applies only to aliens.)



5. The MCA permits certain review of detention decisions in the D.C. Circuit court of appeals itself. The court today refused to perform that review, because it concluded (page 25) that the record does not contain sufficient information to review the detention decisions of the Combatant Status Review Tribunals at GTMO. Therefore, the court did not reach the question of whether the D.C. Circuit review, prescribed in the MCA and DTA, would be an adequate substitute for habeas rights in the event the court is wrong about whether these detainees have constitutionally protected rights to petition for habeas. Cf. Swain v. Pressley, 430 U.S. at 381 (“the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus”). [UPDATE: In a very interesting part of her dissent (pages 20-25), Judge Rogers argues that the D.C. Circuit review is not an adequate substitute for habeas. See also her discussion at pages 29-31, suggesting that "searching" factual review of the grounds for detention is appropriate on habeas, at least insofar as the procedures within the military are less than robust (note 13).] Prediction: The litigation in the Supreme Court -- and the Court's ultimate decision -- will primarily focus on this question, rather than on the question of whether the detainees at GTMO are entitled to constitutional protections (which the Court will answer in the affirmative).



6. Neither opinion discusses the most vexing substantive question that would have to be reached if the habeas claims were entertained -- namely, determining the category of persons who may lawfully be detained by the military as "enemy combatants" pursuant to the September 2001 AUMF and the laws of war incorporated therein. See note 14 of the Rogers dissent.

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