Boumediene — The Great Sandbagging
MichaelW on Jun 13 2008 at 12:38 pm | Filed under: Domestic Politics, Foreign affairs, Law, MichaelW's Page, Military Matters, Notes on the war
UPDATE: Welcome QandO readers. Please look around after you’ve finished with this post, but McQ says you have to go back over to QandO when you’re done … but I won’t tell if you won’t.
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The recent Supreme Court case involving Guantanomo Bay (GITMO) detainees and writs of habeas corpus promises to be one of the most significant opinions for decades to come. Not because it grants foreign citizens the right to challenge their detention in U.S. civil courts (although that’s huge), nor because the decision will lead to possible terrorists being set free in the U.S. (which is almost inevitable), but because it sets a new standard for the power of the Supreme Court. However, no matter the angle from which one approaches the case, constitutional scholars will likely not tire of discussing its implications and applications for quite some time. This post will concentrate on just one of those angles (with others hopefully to follow).
From the outset, it should be noted that the Supreme Court in Boumediene v. Bush sandbagged the Executive and Congressional branches. Beyond ruling that the Constitution extends habeas rights or privileges to anyone within the borders of America’s exclusive control (as I understand Kennedy’s majority opinion), the Court also held that the procedures in place to decide whether a detainee could continue to be held were insufficient to protect the detainee’s right to challenge the lawfulness of that detention. Those procedures include the Combat Status Review Tribunals (CSRT’s), which determinations were reviewable by the D.C. Circuit. From Chief Justice Roberts’ dissent (pp. 84-85 of pdf):
The political branches created a two-part, collateral review procedure for testing the legality of the prisoners’ detention: It begins with a hearing before a Combatant Status Review Tribunal (CSRT) followed by review in the D. C. Circuit. As part of that review, Congress authorized the D. C. Circuit to decide whether the CSRT proceedings are consistent with “the Constitution and laws of the United States.” DTA §1005(e)(2)(C), 119 Stat. 2742. No petitioner, however, has invoked the D. C. Circuit review the statute specifies. See 476 F. 3d 981, 994, and n. 16 (CADC 2007); Brief for Federal Respondents 41–43. As a consequence, that court has had no occasion to decide whether the CSRT hearings, followed by review in the Court of Appeals, vindicate whatever constitutional and statutory rights petitioners may possess. See 476 F. 3d, at 994, and n. 16.
This system was created in direct response to the Supreme Court’s decision in Hamdi v. Rumsfeld where the plurality decision drafted by J. O’Connor set out the minimum standards necessary to meet the strictures required by habeas in status hearings for American citizens (emphasis in original).
It is grossly premature to pronounce on the detainees’ right to habeas without first assessing whether the remedies the DTA system provides vindicate whatever rights petitioners may claim. The plurality in Hamdi v. Rumsfeld, 542 U. S. 507, 533 (2004), explained that the Constitution guaranteed an American citizen challenging his detention as an enemy combatant the right to “notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.” The plurality specifically stated that constitutionally adequate collateral process could be provided “by an appropriately authorized and properly constituted military tribunal,” given the “uncommon potential to burden the Executive at a time of ongoing military conflict.” Id., at 533, 538. This point is directly pertinent here, for surely the Due Process Clause does not afford non-citizens in such circumstances greater protection than citizens are due. If the CSRT procedures meet the minimal due process requirements outlined in Hamdi, and if an Article III court is available to ensure that these procedures are followed in future cases, see id., at 536; INS v. St. Cyr, 533 U. S. 289, 304 (2001); Heikkila v. Barber, 345 U. S. 229, 236 (1953), there is no need to reach the Suspension Clause question. Detainees will have received all the process the Constitution could possibly require, whether that process is called “habeas” or something else. The question of the writ’s reach need not be addressed.
Roberts’ point is that the Supreme Court jumped the gun on this case by not waiting for the review system put in place by the Congressional and Executive branches to play out. Maybe it doesn’t meet Constitutional muster, but there’s no way to know unless the detainees avail themselves of it. More importantly, this case reaches the perverse conclusion that the review system blessed by the Hamdi Court for American citizens is insufficiently protective of the rights of non-citizens. In doing so, the Court had to sidestep its own precedent (and, quite frankly, its Constitutional requirement) not to issue advisory opinions (my emphasis):
The Court acknowledges that “the ordinary course” would be not to decide the constitutionality of the DTA at this stage, but abandons that “ordinary course” in light of the “gravity” of the constitutional issues presented and the prospect of additional delay. Ante, at 43. It is, however, precisely when the issues presented are grave that adherence to the ordinary course is most important. A principle applied only when unimportant is not much of a principle at all, and charges of judicial activism are most effectively rebutted when courts can fairly argue they are following normal practices.
That’s a powerful statement by the Chief Justice, and one you will likely see a great deal of.
Getting back to the CSRT’s, however, the reason that Boumediene represents such a sandbag for the other two branches of government is because the Hamdi Court provided a road map for what sorts of hearings would meet constitutional muster, Congress and the military followed it, and then the Boumediene Court shot them down. Specifically, the CSRT’s were modeled on Army Regulation 190-8 as specified by Justice O’Connor:
There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. See Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Regulation 190—8, §1—6 (1997). In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved.
The Secretary of the Navy Gordon England stated:
As you will recall, in last June’s Supreme Court decision in “Hamdi,” Justice O’Connor explicitly suggested that a process based on existing military regulations– and she specifically cited Army regulation 190-8– might be sufficient to meet due process standards. You’ll also perhaps know that that Army regulation is what the U.S. uses to implement Article 5 of the Geneva Convention that deals with prisoners of war. So our CSRT process incorporates that guidance from Article 5, Army regulation 190-8…
Yet when these very procedures approved by the Hamdi Court (including J. Kennedy who wrote the majority opinion here, and J. Breyer who drafted his own concurrence) are examined by the Boumediene Court, they suddenly become highly suspect.
After much hemming and hawing, the majority appears to concede that the DTA provides an Article III court competent to order release. See ante, at 61. The only issue in dispute is the process the Guantanamo prisoners are entitled to use to test the legality of their detention.
N.B. Roberts isn’t entirely correct here in that the majority also disapproved of the limited review granted to the D.C. Circuit of the CSRT determinations.
Hamdi concluded that American citizens detained as enemy combatants are entitled to only limited process, and that much of that process could be supplied by a military tribunal, with review to follow in an Article III court. That is precisely the system we have here. It is adequate to vindicate whatever due process rights petitioners may have.
A
The Court reaches the opposite conclusion partly because it misreads the statute. The majority appears not to understand how the review system it invalidates actually works—specifically, how CSRT review and review by the D. C. Circuit fit together. After briefly acknowledging in
its recitation of the facts that the Government designed the CSRTs “to comply with the due process requirements identified by the plurality in Hamdi,” ante, at 3, the Court proceeds to dismiss the tribunal proceedings as no more than a suspect method used by the Executive for determining the status of the detainees in the first instance, see ante, at 43. This leads the Court to treat the review the DTA provides in the D. C. Circuit as the only opportunity detainees have to challenge their status determination. See ante, at 49.[...]
The majority is equally wrong to characterize the CSRTs as part of that initial determination process. They are instead a means for detainees to challenge the Government’s determination. The Executive designed the CSRTs to mirror Army Regulation 190–8, see Brief for Federal Respondents 48, the very procedural model the plurality in Hamdi said provided the type of process an enemy combatant could expect from a habeas court, see 542 U. S., at 538 (plurality opinion). The CSRTs operate much as habeas courts would if hearing the detainee’s collateral challenge for the first time: They gather evidence, call witnesses, take testimony, and render a decision on the legality of the Government’s detention. See Implementation Memo, App. J to Pet. for Cert. in No. 06–1196, at 153–162. If the CSRT finds a particular detainee has been improperly held, it can order release. See id., at 164.
The majority insists that even if “the CSRTs satisf[ied] due process standards,” full habeas review would still be necessary, because habeas is a collateral remedy available even to prisoners “detained pursuant to the most rigorous proceedings imaginable.” Ante, at 55, 56. This comment makes sense only if the CSRTs are incorrectly viewed as a method used by the Executive for determining the prisoners’ status, and not as themselves part of the collateral review to test the validity of that determination. See Gusik, 340 U. S., at 132. The majority can deprecate the importance of the CSRTs only by treating them as something they are not.
The use of a military tribunal such as the CSRTs to review the aliens’ detention should be familiar to this Court in light of the Hamdi plurality, which said that the due process rights enjoyed by American citizens detained as enemy combatants could be vindicated “by an appropriately authorized and properly constituted military tribunal.” 542 U. S., at 538. The DTA represents Congress’ considered attempt to provide the accused alien combatants detained at Guantanamo a constitutionally adequate opportunity to contest their detentions before just such a tribunal.
As Roberts points out above, the majority opinion had to completely discount the CSRT’s as part of the process by which a detainee could challenge his detention, even though this was explicitly the process approved by the earlier Hamdi decision. After eliding past the CSRT’s, the majority found the D.C. Circuit part of the process to be insufficiently protective of habeas rights primarily because of its limited review of each case. From J. Kennedy’s Opinion of the Court:
The more difficult question is whether the DTA permits the Court of Appeals to make requisite findings of fact. The DTA enables petitioners to request “review” of their CSRT determination in the Court of Appeals, DTA §1005(e)(2)(B)(i), 119 Stat. 2742; but the “Scope of Review” provision confines the Court of Appeals’ role to reviewing whether the CSRT followed the “standards and procedures” issued by the Department of Defense and assessing whether those “standards and procedures” are lawful. §1005(e)(C), ibid. Among these standards is “the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence . . . allowing a rebuttable presumption in favor of the Government’s evidence.”
§1005(e)(C)(i), ibid.Assuming the DTA can be construed to allow the Court of Appeals to review or correct the CSRT’s factual determinations, as opposed to merely certifying that the tribunal applied the correct standard of proof, we see no way to construe the statute to allow what is also constitutionally required in this context: an opportunity for the detainee to present relevant exculpatory evidence that was not made part of the record in the earlier proceedings.
On its face the statute allows the Court of Appeals to consider no evidence outside the CSRT record. In the parallel litigation, however, the Court of Appeals determined that the DTA allows it to order the production of all “ ‘reasonably available information in the possession of the U. S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant,’ ” regardless of whether this evidence was put before the CSRT. See Bismullah I, 501 F. 3d, at 180. The Government, see Pet. for Cert. pending in Gates v. Bismullah, No. 07–1054 (hereinafter Bismullah Pet.), with support from five members of the Court of Appeals, see Bismullah III, 514 F. 3d, at 1299 (Henderson, J., dissenting from denial of rehearing en banc); id., at 1302 (opinion of Randolph, J.) (same); id., at 1306 (opinion of Brown, J.) (same), disagrees with this interpretation. For present purposes, however, we can assume that the Court of Appeals was correct that the DTA allows introduction and consideration of relevant exculpatory evidence that was “reasonably available” to the Government at the time of the CSRT but not made part of the record. Even so, the DTA review proceeding falls short of being a constitutionally adequate substitute, for the detainee still would have no opportunity to present evidence discovered after the CSRT proceedings concluded.
Under the DTA the Court of Appeals has the power to review CSRT determinations by assessing the legality of standards and procedures. This implies the power to inquire into what happened at the CSRT hearing and, perhaps, to remedy certain deficiencies in that proceeding. But should the Court of Appeals determine that the CSRT followed appropriate and lawful standards and procedures, it will have reached the limits of its jurisdiction. There is no language in the DTA that can be construed to allow the Court of Appeals to admit and consider newly discovered evidence that could not have been made part of the CSRT record because it was unavailable to either the Government or the detainee when the CSRT made its findings. This evidence, however, may be critical to the detainee’s argument that he is not an enemy combatant and there is no cause to detain him.
In sum, the last time that the Supreme Court visited the issue of protecting habeas rights of GITMO detainees it specifically provided an example of the type of process necessary to pass Constitutional muster — i.e. one that mirrors Army Regulation 190-8. In response, the Department of Defense implemented exactly such proceedings. under direction of Congress which adhered to the Hamdi Court’s guidance. In fact, a memo from the Deputy Secretary of Defense regarding the implementation of the CSRT’s explains that these tribunals are for the purpose of determining, “in a fact-based proceeding,” whether detainees “are properly classified as enemy combatants and to permit each detainee the opportunity to contest such designation.” During the process, each detainee was provided
… the assistance of a Personal Representative; and interpreter if necessary; an opportunity to review unclassified information relating to the basis for his detention; the opportunity to appear personally to present reasonably available information relevant to why he should not be classified as an enemy combatant; the opportunity to question witnesses testifying at the Tribunal; and, to the extentthey are reasonably available, the opportunity to call witnesses on his behalf.
Does that provide the same amount of protection as a criminal trial in the U.S.? No, but it didn’t have to. It wasn’t exactly a star chamber either, particularly since a review of the process in the D.C. Circuit was always available to the detainee. However, no detainee took advantage of that review.
After implementing the very process the Hamdi Court blessed, and adding a legal review in the D.C. Circuit, the Supreme Court struck down the entire process as unconstitutional because it (erroneously) found that the CSRT was little more than a battlefield decision review board, and because there was no fact-finding powers available to the D.C. Circuit. The Hamdi Court virtually told Congress and the Department of Defense exactly what to do and then the Boumediene Court declared that it wasn’t good enough when they did it. And it had to overlook its own precedent and Constitutional restrictions on its power in order to do so.
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Sphere: Related Content6 Responses to “Boumediene — The Great Sandbagging”
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I could be mistaken in my understanding of how the judicial branch works, but is the fact that no detainee took advantage of the DC Circuit Court review relevant to whether or not the system the previous court decided upon was constitutional? I mean, previous court decisions have been overturned for sloppy reasoning before. So is it weird for successive courts to reverse themselves like this, then?
Great question, Josh. I hinted at why the failure to actually use the D.C. Circuit option should have been fatal to the plaintiffs’ claims when I claimed that the SCOTUS had overstepped its Constitutional bounds:
The SCOTUS is Constitutionally bound to hear only “cases or controversies” which means that there must be an actual dispute between known litigants with real legal issues, real legal harms, and for which the Court can provide a remedy. In short, the SCOTUS is not permitted to issue advisory opinions — i.e. “If the law were this and the parties were these, then the ruling would be,” yada, yada, yada.
Why C.J. Roberts (with whom I agree) thinks that this opinion oversteps those bounds is because the law being struck down was not properly before the Court (the detainees had not used it and therefore could not challenge it) and there was no way to tell if it was insufficiently protective of habeas rights/privileges or not.
Yeah, it is. The last time I can think of that something happened like this was with the West Coast Hotel decision that essentially ushered in the era of Big Government we have today. That was when Owen Roberts changed his stance (he claims he was being consistent) with regards to a freedom of contract issue, swinging the court from being protective of individual rights to contract how they please to being supportive of government rights to play a significant (and controlling) part in the process. It was derisively referred to as the “switch in time that saved nine” in reference to FDR’s famous court-packing plan (i.e. it was claimed that Roberts switched his vote to the fed gov’t side in order to prevent FDR from going forward with his plan).
Okay, I can see the case for why it may have been improper for the court to hear the case, but you also seem to be arguing that the idea of granting detainees habeas corpus is a step too far. That’s something I’m not sure about—I’m of the general temperament that if we have faith in our system, then it will produce appropriate results, and denying basic rights to people in U.S. custody based on citizenship seems like a repudiation of faith in our system (if that makes sense).
I don’t know if I’m actually making any such argument above, but I do think that granting habeas to alien detainees is a bad idea. Where does it end? Do we also have to Mirandize them? Judging from the Boumediene majority it would seem so. What makes the decision especially egregious is that it grants greater rights to aliens than what American’s have under Hamdi.
The real problem as I see it is that the SCOTUS has essentially ruled that the U.S. must treat every person in the world as an American citizen no matter where it deals with them. Kennedy took great pains to differentiate GITMO as a place under the exclusive control of the U.S. (thus allowing the SCOTUS to extend Constitutional protections to that territory), but the reasoning is begging to be expanded to anywhere the U.S. operates. I mean, is there really any practical difference between GITMO and, say, FOB Falcon? From an “exclusive control” standpoint I think it will difficult to say there is.
There is also the theoretical problem of defining the reach of the Constitution. Keep in mind that no POW’s in the history of war, much less the U.S., have ever been granted rights as expansive as what the DTA gave them. Explaining how a contract between the legal citizens of a nation as to how their government will be limited in its dealings with the governed can be at all applicable to citizens of foreign nations, on foreign soil, who are actively engaged in hostile actions against that nation, involves some pretty interesting feats of intellectual contortion. Explaining how those rights are actually greater than those possessed by her own citizens may cause one’s head to explode.
In the end, it’s not about faith in our system (which was designed to protect citizens from their own government), but about protecting our nation. Certainly placing some self-restraint on how our government (really, the military) deals with aliens is desirable and commendable. But where do you cross the line in handicapping the conduct of military affairs? How many hands do we need to tie behind our back before the military is unable to effectively do its job? In my mind, the Boumediene decision crosses that line.
I mean, is there really any practical difference between GITMO and, say, FOB Falcon? From an “exclusive control” standpoint I think it will difficult to say there is.
Well, aren’t military bases considered U.S. territory? At the least, they are bubbles where American rules still apply: if I commit a crime on FOB Falcon, a U.S. judicial system will try the case, not an Iraqi one. I was under the impression we give non-citizens the same rights to fair trial—which includes no indefinite detention, being able to view and challenge prosecuting evidence, freedom from abusive treatment, and so on—if they are held on American soil. Or we simply deport them. I’m unaware of us creating a discretionary and non-voluntary court system in our past, at least one that stood for longer than a few years (like Wilson’s despicable Espionage Act cases). The military signs up for a different court system. People snatched from their homes in Afghanistan or Iraq do not.
Given the nature of the Hamdi case, which was partially the White House asserting its right to seize U.S. citizens but handle them outside the bounds of the constitution for security reason, I am uncomfortable letting the DOD and White House craft judicial policy without oversight. I mean, it’s hard to argue this is a miscarriage of justice on par with something like the Dredd Scott decision, you know?
And from a larger view, I’ve always thought that decisions that increase the liberty of those under the government’s purview are healthy, even if we’re uncomfortable with it. If the government has a case against these people, let them present it at trial where they can face conviction and proper jail time for their crimes. If they have suspicions, well… we don’t operate like that. It is the way the White House has gone about the whole affair, trying to create shadow unaccountable trials and so on (in an attempt to avoid as much oversight about treatment as possible), that leaves me deeply disinclined to allow them to hold onto such power.
And I still don’t see how granting non-citizens held in U.S. territory habeas corpus rights is more expansive than Hamdi. Could you expand on that a bit?
Regarding the difference between GITMO and FOB Falcon, under Boumediene they aren’t the same because FOB Falcon isn’t under the exclusive control of the U.S. Regardless of that rather dubious distinction, however, I have a difficult time believing that the distinction will withstand scrutiny, and suddenly we will have common POW’s appearing in D.C. courts seeking habeas decisions. That may sound wonderful from a theoretical, “more freedom equals better” point of view, but the practical result will mean the release of dangerous people who will (and, in fact, already have) go back and try to kill Americans again.
Consider this: if the only evidence that someone is truly an enemy combatant is classified, and the only witnesses are soldiers out doing their job of fighting enemy combatants, how will the U.S. prevail in such a case? Reveal the classified info and thus compromise battlefield tactics? We can’t do that. Even if there was some secure method of presenting such info to a civil court, the military can’t trust that there will be no leaks and will have to change tactics either way. Are we going to pull soldiers off the battlefield to testify or tie them up in lengthy depositions? If we did that would seriously undermine any military efforts we are making. These are just some of the concerns with turning war into a criminal enforcement exercise.
Agreed as to how these cases were handled, and I’m going have something to post about that later. The bottom line is that, just as nature abhors a vacuum, so does the law. Having enemy fighters who are basically unclassifiable under the GC makes for a difficult situation, but it was one that the Bush Administration (and the Republican Congress) never sought seriously to solve until AFTER the court cases started coming. Adding to this is the fact that the GC are seriously outdated and not very useful for dealing with non-state combatants who aren’t involved in a civil insurrection. They need to be updated.
As for the comparison to Dred Scott decision (or the like) I would argue that Boumediene is worse for one simple reason: Dred Scott applied the law as it actually was, without giving enough due to the Constitution, while Boumediene simply ignored the law as it was and went beyond the bounds of the Constitution. The former could be considered an (extreme) exercise in judicial restraint, while the later was a blatant case of judical activism. For me, that is one of the main reasons this is a bad decision.
I agree with you when it comes to how the government deals with her own citizens, but I firmly and adamantly disagree that this war, or any war, should be fought as if it were an enforcement of criminal laws. Criminal laws in America are specifically and explicitly fashioned to protect the criminals from the state (thus “it’s better that 10 guilty men go free than one innocent man sent to jail”). But we don’t want to protect our enemies from the state, we want the state to deal with them expeditiously and with extreme prejudice.
That being said, you hit on the one point that makes this a very tough case (or cases, as it were), in that I really don’t know how we could justify keeping someone locked up indefinitely without any sort of charges being brought against them or not. To that extent, habeas is the perfect answer because that’s exactly what its meant to do: force the state to fish or cut bait. And to that extent, the Hamdi case probably got it about as exactly right as anyone could when it strongly suggested that Army Reg. 190-8 was the way to go. Unfortunately, the SCOTUS reversed itself (Justices Kennedy and Breyer specifically) by the time Boumediene rolled around.
Sure. It’s not the granting of habeas rights, but the process by which such rights are vinidicated. The Hamdi court said that Army Reg. 190-8 would be fine for protecting the habeas rights (actually the SCOTUS refers to them as “privileges”) of American citizens, but required something more when it decided Boumediene, without actually defining what that more should be exactly. One specific item of note is that, in Boumediene, J. Kennedy cited dissaprovingly the fact that the DTA granted the government a “rebuttable presumption in favor of the Government’s evidence.” This was seen as one of the reasons that the detainees’ habeas privileges/rights were not protected, and why the system was unconstitutional. Yet, in Hamdi, the plurality decision (which Kennedy joined) approved of A.R. 190-8 which also provides for a rebuttable presumption in favor of the government’s evidence. So, in one case involving American citizens it’s OK to have this presumption, but for alien detainees it’s not good enough.