On June 12th the U.S. Supreme Court handed down its judgment in the combined cases of Boumediene v Bush and Al Odah v United States (judgment
). By a majority of 5-4 the Court held, in a judgment written by Kennedy J., that the Constitutional protection of habeas corpus applied to those detained in GuantÃ¡namo Bay who, as a result, are entitled to take habeas petitions in federal district courts. The Court further held that the review mechanisms currently operating in the base (i.e. Combatant Status Review Tribunals with limited federal appeal) are not adequate alternatives to habeas corpus and therefore do not preclude habeas petitions. Given the significance of the decision an unusually lengthy post follows on the decision of the Court. interested parties are strongly advised to read also the concurring and dissenting opinions, all of which are spirited and reveal the extent to which the Court is fundamentally divided on the question of executive detention of those identified as terrorists by the Executive branch.
As an initial matter the Court held that Congress has successfully stripped federal courts of jurisdiction to hear habeas corpus petitions brought by detainees in GuantÃ¡namo Bay under the statutory habeas provisions. As a result, if the petitioners are to be entitled to bring any habeas claim it must be on the basis of the constitution. [Interestingly the Court did not consider whether there was any basis for bringing such a claim reliant on customary international law or international human rights law treaties, which might have also been a viable (although necessarily weaker) basis for finding in the petitionersâ€™ favour. These international legal arguments were never presented to the Court by counsel for the petitioners, a decision that I criticise in an article forthcoming in the Israel Law Review and available in unformatted form here].
Article I(9)(2) of the U.S. Constitution, known as the Suspension Clause, provides that the privilege of habeas corpus may not be suspended except where invasion or security requires it. This has been interpreted as enshrining a right to habeas in the Constitution (Ex parte Bollman). The main argument proposed by the Government was that this constitutional provision did not apply to the petitioners because they were located outside of the territorial jurisdiction of the United States. this argument was refuted on two bases â€“ firstly the importance of habeas corpus as one of the few rights protected in the US Constitution in its original form, i.e. before the Bill of Rights was introduced (a point I made in the ICLJ and Panoptica in 2007), and secondly the historical meaning of the writ as one that extended to every situation of effective sovereignty even in the absence of formal sovereignty. In an important passage, on p. 15, Kennedy J. holds:
â€œIn our own system the Suspension Clause is designed to protect against these cyclical abuses. The Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary ill have a time-tested device, the writ, to maintain the â€œdelicate balance of governanceâ€ that is itself the surest safeguard of liberty. See Hamdi, 542 U. S., at 536 (plurality opinion). The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to accountâ€¦The separation-of powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause.â€
In the earlier case of Rasul v Bush
Kennedy J. had indicated his belief that the Constitution might run to GuantÃ¡namo Bay because it was essentially an unincorporated territory of the United States. This reasoning, heavily influenced by The Insular Cases
, arises in a much more central fashion in yesterdayâ€™s judgment. On pages 22 â€“ 25 Kennedy J. held:
â€œGuantanamo Bay is not formally part of the United Statesâ€¦ And under the terms of the lease between the United States and Cuba, Cuba retains â€œultimate sovereigntyâ€ over the territory while the United States exercises â€œcomplete jurisdiction and control.â€â€¦Under the terms of the 1934 Treaty, however, Cuba effectively has no rights as a sovereign until the parties agree to modification of the 1903 Lease Agreement or the United States abandons the baseâ€¦Accordingly, for purposes of our analysis, we accept the Governmentâ€™s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territoryâ€.
Building on both of these bases Kennedy J. hands down an extremely strongly worded passage on the extra-territorial application of the US Constitution on p.p. 35-36 that at once constrains notions that the Executive can act with impunity provided it acts extra-territorially and asserts the right of the federal courts to ensure the effective separation of powers no matter where the state may be acting:
â€œThe 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 â€œabsolute and unlimitedâ€ but are subject â€œto such restrictions as are expressed in the Constitution.â€ 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. The former position reflects this Courtâ€™s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say â€œwhat the law is.â€ 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.â€
Kennedy J. then goes on to identify the three key considerations in assessing whether the Constitutional right to habeas corpus applies in any particular instance of extra-territorial detention: (1) the citizenship and status of the detainee and the adequacy of the process by which a decision to detain was made, (2) the nature of the sites of apprehension and detention, (3) the practical difficulties involved in resolving the petitionerâ€™s entitlement to the writ of habeas corpus (p.p. 36-37). By application of these criteria he held, at p. 41:
â€œIt is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains
de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding. We hold that Art. I, Â§9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. Cf. Hamdi, 542 U. S., at 564 (SCALIA, J., dissenting)â€
Having held that the petitioners are entitled to habeas corpus or an adequate alternative the Court went on to consider the basic requirements of a review process in order to meet Constitutional requirements. Although Kennedy J. expressly states that the elements identified in the judgment are not exhaustive (p.p. 49-50) he outlines the following: (1) the review process must provide opportunity for the petitioner to make a meaningful case that his detention is unlawful, (2) the review body must have the capacity to order release although that is not the only remedy that might be provided in the occasion of a successful petition, (3) where a person is detained on the basis of executive, rather than court, order the review tribunal must be enabled to conduct a thorough and meaningful review in relation to whether due process has been accorded. In sum, he held, at p. 57:
â€œFor the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Governmentâ€™s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding.â€
And, at p. 58:
â€œ[W]hen the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisonerâ€™s release.â€
The processes available to Guantanamo Bay detainees under the applicable statutes (i.e. Detainee Treatment Act 2005 and Military Commissions Act 2006) did not, the Court held, satisfy these requirements. The Court held that s. 7 of the Military Commissions Act 2006 is unconstitutional (p.66), and that the Executive is entitled to a reasonable period of time to determine a detaineeâ€™s status before a court entertains that detaineeâ€™s habeas corpus petition (p. 66). In his closing passage Kennedy J. appears to try to placate those who will protest that this decision constitutes an unconscionable burden on the Executive in its attempts to secure the United States against the contemporary threat but nevertheless clearly asserts the Courtâ€™s conviction that it is entitled, if not obliged, to ensure that basic principles of the Rule of Law are maintained notwithstanding substantial security threats (p.p. 68-69). The passage, although lengthy, is worth quoting in full:
â€œIn considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branchesâ€¦Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security. Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nationâ€™s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not.
Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedomâ€™s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.
Our opinion does not undermine the Executiveâ€™s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitutionâ€™s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.
Because our Nationâ€™s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.â€