Reviving Habeas Corpus
- Supreme Court Checks and Balances in Boumediene
By MARJORIE COHN
After the Supreme Court handed down its long-awaited opinion,
upholding habeas corpus rights for the Guantánamo detainees, I was
invited to appear on The O'Reilly Factor with guest host Laura
Ingraham. Although she is a lawyer and former law clerk for Justice
Clarence Thomas, Ingraham has no use for our judicial branch of
government, noting that the justices are "unelected." Indeed, she
advocated that Bush break the law and disregard the Court's decision
in Boumediene v. Bush:
"Marjorie, I was trying to think to myself, look, if I were
President Bush, and I had heard that this case had come down, and
I'm out of office in a few months. My ratings, my popularity ratings
are pretty low, I would have said at this point, that's very
interesting that the court decided this, but I'm not going to
respect the decision of the court because my job is to keep this
What did the Court decide that so incensed Ingraham (who has just
been rewarded for her "fair and balanced" views with her own show on
Fox News)? Will this decision really imperil our safety? And will
Boumediene become an issue in the presidential election?
The Supreme Court held in a 5-4 ruling that the Guantánamo detainees
have a constitutional right to habeas corpus, and that the scheme
for reviewing 'enemy combatant' designations under the Combatant
Status Review Tribunals is an inadequate substitute for habeas
corpus, a result I predicted in a December 3, 2007
Guantánamo detainees have constitutional right to habeas corpus
Article 1, Section 9, Clause 2 of the Constitution is known as the
Suspension Clause. It reads, "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." In section 7(a) of the
Military Commissions Act of 2006, Congress purported to strip habeas
rights from the Guantánamo detainees by amending the habeas corpus
statute (28 U.S.C.A. § 2241(e)). In Boumediene, the Court held that
section of the Act to be unconstitutional, declaring that the
detainees still retained the constitutional right to habeas corpus.
Justice Kennedy, writing for the majority, reiterated the Court's
finding in Rasul v. Bush that although Cuba retains technical
sovereignty over Guantánamo, the United States exercises complete
jurisdiction and control over its naval base and thus the
Constitution protects the detainees there. Kennedy rejected "the
necessary implication" of Bush's position that the political
branches could "govern without legal restraint" by locating a U.S.
military base in a country that retained formal sovereignty over the
area. In his dissent, Chief Justice Roberts flippantly characterized
Guantánamo as a "jurisdictionally quirky outpost."
Kennedy worried that the political branches could "have the power to
switch the Constitution on or off at will" which "would lead to a
regime in which they, not this Court, say 'what the law is.'" "Even
when the United States acts outside its borders," Kennedy
wrote, "its powers are not 'absolute and unlimited' but are
subject 'to such restrictions as are expressed in the Constitution.'"
Thus, Kennedy observed, "the writ of habeas corpus is itself an
indispensable mechanism for monitoring the separation of powers."
Indeed, habeas corpus was one of the few individual rights the
Founding Fathers wrote it into the original Constitution, years
before they enacted the Bill of Rights.
"The test for determining the scope of [the habeas corpus]
provision," Kennedy wrote, "must not be subject to manipulation by
those whose power it is designed to restrain." It is such
manipulation that Laura Ingraham would perpetuate. It was a
Republican-controlled Congress, working hand-in-glove with Bush,
that tried to strip habeas corpus rights from the Guantánamo
detainees in the Military Commissions Act. The Supreme Court has
determined that effort to be unconstitutional. Fulfilling its
constitutional duty to check and balance the other two branches, the
Court has carried out its mandate to interpret the Constitution and
say "what the law is."
No adequate substitute for habeas corpus
Finding that the Guantánamo detainees retained the constitutional
right to habeas corpus, the Court turned to the issue of whether
there was an adequate substitute for habeas review. Bush established
Combatant Status Review Tribunals ("CSRTs") to determine whether a
detainee is an "enemy combatant." These kangaroo courts provide no
right to counsel, only a "personal representative," who owes no duty
of confidentiality to his client and often doesn't even advocate on
behalf of the detainee; one even argued the government's case. The
detainee doesn't have the right to see much of the evidence against
him and is very limited in the evidence he can present.
The CSRTs have been criticized by military participants in the
process. Lt. Col. Stephen Abraham, a veteran of U.S. intelligence,
said they often relied on "generic" evidence and were set up to
rubber-stamp the "enemy combatant" designation. When he sat as a
judge in one of the tribunals, Abraham and the other two judges - a
colonel and a major in the Air Force - "found the information
presented to lack substance" and noted that statements presented as
factual "lacked even the most fundamental earmarks of objectively
credible evidence." After they determined there was "no factual
basis" to conclude the detainee was an enemy combatant, the
government pressured them to change their conclusion but they
refused. Abraham was never assigned to another CSRT panel. It is
widely believed that Abraham's affidavit about the shortcomings of
the CSRT's in Boumediene's companion case caused the Supreme Court
to reverse its denial of certiorari and agree to review Boumediene.
This was the first time in 60 years the Court had so reversed itself.
While the Court declined to decide whether the CSRTs satisfied due
process standards, it concluded that "even when all the parties
involved in this process act with diligence and in good faith, there
is considerable risk of error in the tribunal's findings of fact."
The Court then had to determine whether the procedure for judicial
review of the CSRTs' "enemy combatant" designations constituted an
adequate substitute for habeas corpus review.
"For the writ of habeas corpus, or its substitute, to function as an
effective and proper remedy in this context," Kennedy wrote, "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
Government'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."
But in the Detainee Treatment Act ("DTA"), Congress limited district
court review of the CSRT determinations to whether the CSRT complied
with its own procedures. The district court had no authority to hear
newly discovered evidence or make a finding that the detainee was
improperly designated as an enemy combatant.
The Supreme Court noted that "when 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 prisoner's
release." Since the DTA's scheme for reviewing determinations of the
CSRTs did not afford this authority, the Court held it was not an
adequate substitute for habeas corpus and thus section 7 of the
Military Commissions Act acted as "an unconstitutional suspension of
Boumediene will not imperil the United States
In his dissent, Justice Scalia sounded the alarm that the Boumediene
decision "will almost certainly cause more Americans to be killed."
Likewise, the Wall St. Journal editorialized, "We can say with
confident horror that more Americans are likely to die as a result."
Their predictions, however, are not based in fact.
Lakhdar Boumediene and five other Algerian detainees from Bosnia
were accused of threatening to blow up an embassy in Bosnia. The
Supreme Court of Bosnia and Herzegovina concluded there was no
evidence to continue to detain them and ordered them released. The
Bosnian officials turned them over to the United States and they
were transported to Guantánamo, where they have languished since
Many of the men and boys at Guantánamo were sold as bounty to the
U.S. military by the Northern Alliance or warlords for $5,000 a
head. Indeed, Maj. Gen. Jay Hood, the former commander at
Guantánamo, admitted to the Wall St. Journal, "Sometimes we just
didn't get the right folks," but innocent men remain detained there
because "[n]obody wants to be the one to sign the release
papers . . . there's no muscle in the system."
The Boumediene decision will not directly impact the criminal cases
against Khalid Sheikh Mohammed and the few others who will be tried
in the military commissions. It is the 211 men who have filed habeas
corpus petitions challenging their "enemy combatant" designations
who will benefit from this ruling. No one will be automatically
released. They will simply be afforded a fair hearing. Most
Americans would not object to a requirement that our government
fairly prove someone guilty before we imprison him indefinitely.
Even Justice Jackson, the chief prosecutor at Nuremberg, advocated
due process for the Nazi leaders. "The ultimate principle," he
said, "is that you must put no man on trial under the forms of
judicial proceedings if you are not willing to see him freed if not
proven guilty." Jackson understood the importance of the presumption
of innocence in our system of law.
Kennedy quoted Alexander Hamilton, who wrote in Federalist 84
that "arbitrary imprisonments have been, in all ages, the favorite
and most formidable instruments of tyranny." Justice Souter cut to
the chase in his separate opinion, citing "the length of the
disputed imprisonments, some of the prisoners represented here today
having been locked up for six years." None of them has been charged
with a crime and none has been brought before a fair and impartial
"The laws and Constitution are designed to survive, and remain in
force, in extraordinary times." Kennedy wrote. "Liberty and security
can be reconciled; and in our system they are reconciled within the
framework of the law. The Framers decided that habeas corpus, a
right of first importance, must be a part of that framework, a part
of that law."
"Security subsists, too, in fidelity to freedom's first principles,"
according to Kennedy. "Chief among these are freedom from arbitrary
and unlawful restraint and the personal liberty that is secured by
adherence to the separation of powers ... Within the Constitution'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."
In responding to Laura Ingraham's false dichotomy between keeping us
safe and protecting habeas corpus, I cited Benjamin Franklin's
admonition: "They who would give up an essential liberty for
temporary security, deserve neither liberty or security."
Attacking judges under guise of national security
The Boumediene decision split along political lines with the four so-
called liberal justices - Ginsburg, Stevens, Souter and Breyer - in
the majority, and the four conservative justices - Scalia, Thomas,
Roberts and Alito - in the dissent. Kennedy, the swing vote, broke
the tie. Curt Levy from the Committee for Justice, which seeks to
pack the courts with right-wing judges, blogged that Boumediene
has "teed up the Supreme Court issue nicely for the G.O.P."
Indeed, John McCain has already seized upon it as a campaign issue.
The day the opinion came out, McCain said, "It obviously concerns
me . . . but it is a decision the Supreme Court has made. Now we
need to move forward. As you know, I always favored closing of
Guantánamo Bay and I still think that we ought to do that." By the
next day, McCain had changed his tune. "The Supreme Court yesterday
rendered a decision which I think is one of the worst decisions in
the history of this country," he declared. McCain, who hopes to
overcome the unpopularity of his positions on the war and the
economy, will make national security the centerpiece of his campaign.
Barack Obama, who links our national security with how other nations
view us, characterized the Boumediene decision as "an important step
toward re-establishing our credibility as a nation committed to the
rule of law, and rejecting a false choice between fighting terrorism
and respecting habeas corpus."
It is very likely that the next president will make at least one
nomination, and probably two, to the Supreme Court. Boumediene is
the poster child for how delicately the Court is now balanced, and
the disastrous consequences to the doctrine of separation-of-powers
that await us if a President McCain makes good on his promise to
appoint judges in the mold of Roberts and Alito.
Marjorie Cohn is president of the National Lawyers Guild and a
professor at Thomas Jefferson School of Law. She is author of Cowboy
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