In both cases, petitioners are detained on Guantánamo (left and below right--photo credit). None is a citizen of a nation at war with the United States. Some were detained on the battlefield in Afghanistan (the Al Odah petitioners), whereas others were detained far from the battlefield (the Boumediene petitioners). Each petitioner received a hearing before a Combatant Status Review Tribunal (CSRT). (The Department of Defense established the CSRTs in response to Hamdi v. Rumsfeld to determine whether the detained individuals were indeed “enemy combatants.”) In each case, the CSRT determined that the petitioners were enemy combatants. Each petitioner then sought a writ of habeas corpus before the District Court for the District of Columbia.
On appeal, the Circuit Court denied them the right to seek the writ, citing the 2005 Detainee Treatment Act (§1005) and the 2006 Military Commission Act (§7). These twin statutes provide the legislative backdrop for the present challenges. Both statutes sought to strip federal courts of habeas jurisdiction over cases brought by Guantánamo detainees. (In Hamdan v. Rumsfeld, the Supreme Court ruled that the DTA applied only to cases that had not yet been filed, so Congress made the MCA expressly retroactive to cover then-pending cases).
In light of this background, the cases presented two over-arching questions:
► 1) Are petitioners detained on Guantánamo entitled to seek the Constitutionally-grounded writ of habeas corpus (and, derivatively, to invoke the protections of the Suspension Clause)?
That clause (Art. I, §9, cl. 2) states:
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.► 2) If so, is the limited review of the Combatant Status Review Tribunal proceedings before the D.C. Circuit an adequate substitute to habeas review?
In order to answer the first question, the Court undertook a detailed historical review of the history of habeas corpus that demonstrates that the Founders embraced the writ—and made it exceedingly difficult to suspend—as a tool to protect citizens from arbitrary detention. This exegesis revealed no clear answer to the precise question presented in these cases—“whether foreign nationals, apprehended and detained in distant countries during a time of serious threats to our Nation’s security, may assert the privilege of the writ and seek its protection” (p. 15). The Court thus conceded that a strictly originalist approach yields a situation of non liquet (“it is not clear”).
Drawing on its extraterritoriality jurisprudence, the Court ruled that three factors governed the question of the extraterritorial reach of the Suspension Clause:
(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.
Applying this tripartite framework, the Court determined that:
► 1) Petitioners are enemy aliens who have received only “limited” process through the CSRT hearings that “fall[s] well short” of the procedural protections and adversarial mechanisms that would eliminate the need for habeas corpus review (p. 37). The Court focused here primarily on the detainees’ lack of a true advocate during the CSRT process, the inability to fully rebut the government’s evidence, the presumption of validity given to the government’s evidence, and the lack of a complete appellate review.
► 2) Petitioners were apprehended and are detained outside of the United States, but they are now on territory over which the U.S. exercises plenary control, even though de jure sovereignty still vests in Cuba. In this regard, the Court significantly distinguished Johnson v. Eisentrager, the case the government cited most frequently in support of its denial of habeas rights to petitioners.
► 3) While the Court acknowledged that there would be costs associated with providing habeas to petitioners and their brethren, including the diversion of military personnel from other pressing tasks, these concerns were not “dispositive” (p. 39). This was especially true given that the base is not situated within an active theatre of war, which might introduce the sort of practical difficulties presented in Eisentrager that justified withholding the writ.
Thus, with respect to the first question presented, the Court determined that the petitioners are entitled to seek the writ of habeas corpus. This finding actuated the second inquiry facing the Court: was the limited review made available before the D.C. Circuit an adequate substitute for habeas?
On this question, the Court also sided with petitioners. The Court noted that the very purpose of the DTA/MCA was to eliminate the option of habeas and substitute a more summary procedure. Although the Court declined to undertake a full comparative analysis of what would be required as an adequate surrogate, it did highlight several grounds on which the DTA process fell well short of what habeas would offer—“a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law” (p. 50 quoting Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289, 302 (2001)).
Most importantly, the Court highlighted that the judicial officer must have adequate authority to make his or her determination in light of the relevant law and facts and must have the power to order the release of the individual. In addition, the Court noted that the need is more pressing for a vigorous habeas process in situations in which the individual is detained by the executive, and not pursuant to prior adversarial proceedings before an independent and disinterested tribunal (p. 54). Given the procedural limitations discussed above, the Court concluded that the existing procedures were no substitute for habeas and in fact gave rise to a considerable risk of error. It concluded:
And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore.
With these interlinked holdings, the Court ruled that Congress in passing the MCA unconstitutionally suspended the writ of habeas corpus in violation of the Suspension Clause.
The immediate effect of the ruling is obvious: existing habeas petitions will be revived and new petitions will be filed. It also seems clear that the government will redouble its efforts to release those detainees who are no longer deemed a security threat, against whom little probative, admissible, or legitimate evidence exists, and who may have credible charges of severe mistreatment and torture. (This is assuming, of course, the government can find a state that will take these men and not mistreat them further).
Other impacts are less clear. For example, the Court provides little guidance on whether existing military commission proceedings must be stayed. Moreover, there is language in the opinion that could be read to cover other detention sites around the world where leases similar to the Cuban all-but-de-jure-sovereignty lease are at issue.
The Court also quite self-consciously dodged two issues that had been at least partially briefed, but were not essential to the present holding:
► The first concerns the conditions of treatment and confinement and whether claims of this nature can be raised in the subsequent habeas proceedings (p. 64).
► The second concerns what law will govern the determination of whether the detention is justified (p. 69). The instant opinion was entirely silent as to international law given that the questions presented turned on the availability of habeas review under the circumstances. International law is likely to be quite relevant to the question of whether the U.S. has the authority to detain these individuals.
And so the litigation continues....