The Boumediene Decision: What Now?

David E. Graham, Executive Director, The Judge Advocate General’s Legal Center and School, US Army
1 Jan 2009

Some weeks back, in a policy brief prepared for the Foundation for Law, Justice and Society, I predicted both the outcome of and a good portion of the reasoning that would serve as the basis for the US Supreme Court's recently issued decision in Boumediene v. Bush

This admission: It wasn’t that difficult. In the words of Justice Souter in his concurrence with the majority's decision: "[W]hether one agrees or disagrees with today's opinion, it is no bolt out of the blue".
 
The issue now becomes: where do we go from here? It has been suggested by some that still more legislation might be tabled in a further effort to prevent those held at Guantanamo from challenging their detention in US courts. This, in my view, is a non-starter. The Court has stated, unequivocally, that, for these particular individuals, held at this specific location, under these unique circumstances, the right of habeas, or an adequate and effective substitute, does exist. Absent an invocation of the Suspension Clause, this right cannot be legislatively denied.
 
Moreover, while Chief Justice Roberts and Justice Scalia direly warn that this decision represents an unprecedented judicial infringement upon the constitutional prerogatives of the political branches during an "ongoing war", it most decidedly does not. I count myself among those who have consistently rejected the idea that the US is at "war" with either radical Islamists or "global terrorism", and have previously noted the many adverse legal ramifications that have evolved from this legal and operational fiction. The Court's ruling reflects, instead, a tempered and restrictive extension of the habeas writ to, once again, a very distinct category of individuals, detained indefinitely, at a specific location under exclusive US control, through the use of a procedural mechanism of very questionable legality.
 
while Chief Justice Roberts and Justice Scalia direly warn that this decision represents an unprecedented judicial infringement upon the constitutional prerogatives of the political branches during an "ongoing war", it most decidedly does not.
 
Also disingenuous is the claim of the Chief Justice that the Court has struck down "the most generous set of procedural protections ever afforded aliens detained by this country as 'enemy combatants'" (the Combatant Status Review Tribunal [CSRT] procedures, with a right of limited appeal to the D.C. Circuit Court of Appeals, reflected in the Detainee Treatment Act), only to replace these protections with a set of "shapeless" procedures to be defined by federal courts.
 
In truth, even a casual reading of the Opinion reveals that the Court does, in fact, speak to what it views as the specific deficiencies of the CSRT process and deals, at some length, with what it deems to be the essential requirements for a habeas writ, or its substitute, in order that such might serve as an effective and meaningful remedy for the individuals detained at Guantanamo. The District Court for the District of Columbia, the sole court that will hear the appeals of the Guantanamo detainees, is already in the process of both assessing and implementing this guidance. While this is a challenging mission, it is one that can, and will, be accomplished with skill and, very significantly, judicial alacrity.
 
Most importantly, the District Court will be unable to avoid dealing with fundamentally important issues raised by the Boumediene decision. Key among these is the fact that, while Guantanamo detainees may now submit writs challenging their detention by the US government, the government's very right to detain such individuals is fully dependent upon its unilateral determination that each of these detainees is an "unlawful enemy combatant", as that term is defined in the Military Commissions Act.
 
Given the scant attention previously paid to the definitional validity of this operative term, the principal matter to be dealt with by the District Court would initially appear to be that of the determination by the Court in Boumediene that the process currently available to detainees for the purpose of challenging their status as "unlawful enemy combatants" (a determination resulting in their indefinite detention) is an inadequate alternative to habeas. Accordingly, it would be logical to assume that the District Court's exclusive focus must be on the identification of those procedural rights and protections that are to be afforded detainees in order to construct a process that will serve as an effective habeas substitute. And, indeed, the District Court will have the task of articulating these requirements.
 
the Court may well have to address a claim that the definition of "unlawful enemy combatant" set forth in the Military Commissions Act is overly broad, and has no basis in either US or international law.
 
I would submit, however, that the Court’s stipulation of procedural requirements will not be the exclusive, or most contentious, issue with which it must deal. It is most probable that the Court will also have to wrestle with the very viable contention that, despite the availability of an alternative to habeas, this process cannot act to cure a patently defective standard upon which the status determination, itself, is made.
 
In other words, the Court may well have to address a claim that the definition of "unlawful enemy combatant" set forth in the Military Commissions Act is overly broad, and has no basis in either US or international law.
 
A discussion of this particular issue might well then lead, in turn, to the scope and intent of the 2001 Congressional Authorization for the Use of Force, as well as the President's inherent authority to unilaterally declare "war" on terrorism and terrorists (aka, "unlawful enemy combatants"), writ large.
 
Lastly, in my view, the Court's decision sounds a death knell for the entire Military Commissions process, as that process is currently constituted, and mandates a substantial modification of the Military Commissions Act.
 
It's going to be an interesting ride.
 
 
Guantanamo Bay