Boumediene v. Bush: A Small Extension of Habeas Corpus Rights, A Firm Event Of Judicial Activism

The United States Supreme Court’s recent decision in Boumediene et al v. Bush et al 549 U. S. __ (2007) has been controversial in ways most decisions rarely manage. Republican Presidential candidate John McCain attacked the decision, calling it “one of the worst decisions in history.” (McCain did not elaborate as to whether Boumediene is worse than Dred Scott v. Sandford 60 U.S. 393 (1857), Korematsu v. United States 323 U.S. 214 (1944), or, for that matter, Bush v. Gore 531 U.S. 98 (2000)). Similarly, Democratic candidate Barack Obama praised the decision as “re-establishing our credibility as a nation committed to the rule of law.” Numerous conservative political voices have decried the decision as one that will embolden terrorists; others point to it as a landmark in civil rights.

However, once you get past the controversy, at its heart Boumediene v. Bush asks a relatively simple legal question: do non-Americans held at Guantanamo Bay have habeas corpus rights?

The Court explains that the Military Commissions Act denies Guantanamo detainees of all habeas corpus rights provided by statutory law. Therefore, if the detainees possess habeas rights, they must emanate from the Constitution, s.9 of which states 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.” The majority decision – written by Justice Kennedy – finds that the Military Commission Act cannot deny Constitutional habeas corpus rights to the detainees and is therefore unconstitutional.

The U.S. government’s argument for disallowing the detainees of their habeas corpus rights is that, since non-citizens located outside the United States do not have habeas corpus rights under American law, that the detainees do not have those rights because Guantanamo Bay is not American soil; Cuba retains ultimate sovereignty over Guantanamo. The petitioners countered by arguing that although Cuba might technically have legal title to the land, the United States still has full control over the land, and therefore habeas rights should extend to Guantanamo.

Justice Kennedy’s agreement with the petitioners’ argument is straightforward, asserting that the history of habeas corpus legislation leads to the conclusion that de facto sovereignty is more important than de jure sovereignty for the purposes of determining right to habeas corpus.

The decision then seeks to distinguish itself from Johnson v. Eisentrager, 339 U. S. 763 (1950), where the Supreme Court dealt with the potential violation of habeas corpus of war prisoners held in Landsberg Prison in Germany after World War II. Eisentrager is noteworthy because in it, the Supreme Court noted that the prisoners were at no time within any territory where the United States had jurisdiction and therefore could not assert habeas corpus rights under American law. Indeed, the government’s argument advanced Eisentrager as precedent supporting its position. Kennedy, however, dismissed the comparison as invalid, distinguishing the situation in Eisentrager as one where the United States lacked both de jure and de facto sovereignty, and suggested that the decision reflects an understanding that “the Court was not concerned exclusively with the formal legal status of Landsberg Prison but also with the objective degree of control the United States asserted over it.”

Kennedy then used very firm language to discuss the government’s attempt to use the status of Guantanamo to skirt the spirit of the law with technicalities:

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. Marbury v. Madison, 1 Cranch 137, 177 (1803).

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.

That last sentence is telling, precisely because of the facts of the situation – detainees at Guantanamo Bay are held there by the United States government.

Finally, Justice Kennedy raises one last issue, namely, that the detainees may not be entitled to a habeas petition if they were at some point offered some avenue that could serve as a reasonable substitute for habeas proceedings. However, Justice Kennedy dismisses those reliefs as inadequate, noting that to find the provisions satisfactory requires so much reading into the statute on the part of the Court that it “would come close to reinstating the… habeas corpus process Congress sought to deny them.” Without any other satisfactory evidence on the part of the government demonstrating sufficient relief for the detainees, the Court again found for the petitioners.

Chief Justice Roberts, in his dissent, argued that this question has not been adequately resolved at the lower levels of American jurisprudence and that rightly the Supreme Court should not decide this issue before the District Courts have had a chance to address the sufficiency of the reliefs provided under the Detainee Treatment Act, as they are explicitly authorized to do so. Roberts in effect claims that the District Courts themselves can serve as a substitutionary relief for habeas corpus rights.

Chief Justice Roberts’ argument here is interesting and not without merit, but Justice Souter’s concurring opinion offers the common-sense counter to his argument: the petitioners in Boumediene have been effectively denied habeas corpus rights for over six years at this point, and suggesting that further lengthy wrangling with the District Courts qualifies as relief ignores that basic fact. Souter writes:

After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation.

That this decision could be characterized as an example of judicial activism does not make it incorrect; when parties operate in bad faith or the nearest thing possible to it (and the lengthy and unimpressive record of the military tribunals at Guantanamo certainly qualifies as “the nearest thing possible”), it becomes the duty of the courts to step in.