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Argument preview: Boumediene/Al-Odah v. Bush

Argument Preview

Boumediene v. Bush and Al Odah v. U.S. bring the legal controversy over President Bush’s fight against terrorism back to the Supreme Court, for the fourth time in the past three years. The consolidated cases are outwardly simple: they are tests of whether individuals captured abroad and held at the U.S. military prison at Guantanamo Bay, Cuba, have any constitutional rights, and, if so, does that include a right to challenge their detention in regular (civilian) U.S. courts. Those two questions, though, encompass a range of difficult constitutional and historical issues.


For America, war always brings constitutional controversy. Whether it be all-out warfare with total mobilization, the Civil War, a regional “war” like those in Korea or Vietnam, or something in between like the use of the U.S. military in Afghanistan and elsewhere against terrorism, armed hostilities produce profound questions over who may commit the U.S. to war, how the war is to be managed, and what happens to individual rights during wartime. Since President Bush in the early afternoon of Sunday, Oct. 7, 2001, disclosed that he had ordered military strikes against “the Taliban regime in Afghanistan,” in direct response to the terrorist attacks on the U.S. on Sept. 11, 2001, the legal questions have been building. Somewhat curiously, they are being worked out primarily in the context of how the U.S. treats those individuals who have been rounded up around the globe as terrorism suspects. That is curious because the Bush Administration adopted a policy on handling of detainees specifically to avoid fighting legal battles in U.S. courts over the “war on terrorism.” That is why an offshore location, Guantanamo Bay, was chosen as the place to hold detainees; Administration lawyers thought it was beyond the reach of the civilian courts.

But, not long after the first dozen detainees arrived at Guantanamo on Jan. 11, 2002, the court cases began. Since then, those cases have brought some answers to core questions about presidential authority and individual rights. But more questions remain.

Three times, beginning on June 28, 2004, the Supreme Court has supplied some of those answers. The lawsuits over detainees’ rights – and, with them, the outlines of basic constitutional controversy over war powers – may still be a significant distance short of final resolution. But the Court will offer some further answers in the current Term when it decides the consolidated cases of Boumediene v. Bush and Al Odah v. U.S. – cases that it originally refused, on April 2, to hear, before changing its mind on June 29.

While the two cases are weighty with significance, they also are limited in significant ways: they involve foreign nationals only, not U.S. citizens; they involve individuals taken captive overseas, not in the U.S.; they involve persons held outside mainland U.S., not in custody anywhere inside this country; they involve individuals none of whom faces any criminal charges, in civilian or military courts. Although the decision in Boumediene/Al Odah may well have an effect later on U.S. citizens, permanent resident aliens, individuals held elsewhere than at Guantanamo, and prisoners facing trial before military commissions, their fate is not directly at issue now. The Court, for example, has expressly declined – so far – to rule on challenges by military commission defendants Salim Ahmed Hamdan and Omar Ahmed Khadr.

The granted cases involve 37 Guantanamo detainees. The individuals who give their names to the cases are Lakhdar Boumediene, a native of Algeria captured in Bosnia in October 2001, and Khalid Abdullah Fahad Al Odah, a Kuwaiti national captured in Afghanistan in late 2001. Those two are among hundreds of detainees who have filed challenges in U.S. federal courts in Washington to their detention, seeking writs of habeas corpus to force the government to justify their captivity and hoping to achieve their release after more than five years in military prison. Although Guantanamo at one point held more than 700 prisoners (and a total of nearly 900 have been there at some time), the detainee population there is now down to about 305. There have been recurrent reports that the Bush Administration is studying whether to close Guantanamo altogether, but that does not appear to be imminent.

No Guantanamo detainee has ever won release in a court case because of the simple fact that not one has yet had a hearing to judge their habeas claim. Federal judges initially threw out the cases, finding no jurisdiction. But the Supreme Court found on June 28, 2004, in Rasul v. Bush and Al Odah v. U.S. (Al Odah is the same individual as in the new case), that detainees had a right under federal statutory law to file habeas challenges. The Court sent the cases back to lower courts to decide initially whether to grant any remedy.

In two District Court decisions within days of each other in January 2005, the judges reached opposite conclusions – one holding in the Boumediene case that the courts could not give detainees any remedy, the other holding in the Al Odah case that the detainees could claim a due process violation in their continued detention. The judge in the Al Odah case ruled that a system of military-only review of detainees’ status – set up by the Pentagon in July 2004 in direct response to the Supreme Court rulings in Rasul and Al Odah (the Combatant Status Review Tribunal system) — was a violation of due process rights.

The cases went up to the D.C. Circuit Court. While those appeals were pending, Congress passed the Detainee Treatment Act of 2005, stripping the federal courts of authority to hear habeas challenges by detainees. That law was tested in the federal courts, and ultimately in the Supreme Court, resulting in the ruling by the Justices on Hamdan v. Rumsfeld on June 29, 2006, that the court-stripping provision of the DTA did not apply to already-pending detainee habeas cases. That led Congress to try again, enacting the Military Commissions Act of 2006, with a more explicit withdrawal of habeas authority in the federal courts in any detainee case.

Finally, after nearly two years of intermittent activity in the D.C. Circuit Court, that Court on Feb. 20, 2007, upheld the Military Commission Act’s court-stripping provisions, and ruled that the detainees who had no “property or presence within the United States” had no constitutional rights whatsoever. It ordered the Boumediene and Al’Odah cases dismissed. The only court process left for detainees, the Circuit Court ruled, was an appeal to the Circuit Court for limited review of the detention findings of the military Combatant Status Review Tribunals, appeal rights that were authorized by the Detainee Treatment Act of 2005.

Petitions for Certiorari

The Boumediene and Al Odah cases then were appealed to the Supreme Court in March 2007. What those appeals sought, one of the petitions said, was “a single remedy: a fair and impartial hearing before a neutral decision maker to determine whether there is a reasonable basis in the law and fact for detaining them.” In Boumediene v. Bush (06-1195), lawyers raised two questions: did Congress in the 2006 law, the MCA, validly take away federal courts’ jurisdiction over Guantanamo detainees’ habeas claims and whether the detainees’ petitions for habeas showed that they were entitled to release or, at least, to a court hearing on the legality of their detention. In Al Odah v . U.S. (06-1196), lawyers raised four questions: was the Circuit Court wrong in finding no constitutional rights and no habeas rights, was the Circuit Court wrong in finding that the habeas right had not been suspended unconstitutionally by Congress, do detainees have a due process right and rights under the Geneva Convention to their liberty, and should the MCA be read not to apply to pending habeas cases in avoid to avoid constitutional questions.

The Justice Department opposed Supreme Court review, arguing that the detainees had significant rights under the Detainee Treatment Act, and should be required to test their claims first in that process before the D.C. Circuit Court. On April 2, the Supreme Court refused to hear Boumediene and Al Odah. Two Justices said the detainees should attempt challenges under the DTA in Circuit Court, and three dissented from the denial. Within weeks, the detainees asked the Supreme Court to reconsider – a maneuver also opposed by the Justice Department. However, on June 29, the Court changed its mind, wiped out its April denial of review, granted review of both of the cases, consolidated them and ordered one hour of hearing. The hearing is scheduled for Wednesday, Dec. 5 – the only case on the calendar that day.

Merits Briefs – the Detainees

While fairly simple at their core, the arguments the detainees make in their merits briefs to buttress their claim of legal rights under the U.S. Constitution and common law could take the Court on a wide-ranging excursion into the history of the habeas writ and its essential character, a penetrating examination of the Constitution’s clause that bars suspension of the writ except in extreme cases of “rebellion or invasion,” and a critical inquiry into the substance and value of the military detention system and of the judicial review process that Congress wants substituted for habeas. The Court also might have to revisit what it wrote in the case of Rasul v. Bush in 2004, one of the first war-on-terrorism cases. (The Rasul case was about statutory habeas, but the detainees’ briefs insisted it went beyond that.) All of this may be entailed in the basic questions of whether the writ extends to Guantanamo (and perhaps potentially to other offshore sites), and whether, if it does, Congress has validly set it aside.

But, if detainees had their way, the Court might also go beyond a finding that they do have habeas rights and that it was not constitutionally suspended, and conclude, on the merits, that those rights have been violated. In short, they want the Court to conclude that there is no lawful basis for them to be detained at all.

A key to their argument about the nature of the habeas rights is that the Supreme Court has already held – as recently as 1996 and repeated in 2001 — that the Constitution protects habeas “as it existed in 1789.” And they contended that the Supreme Court reinforced that view in its Rasul decision, saying that the statutory right to petition acknowledged in that case was “consistent with the historical reach of the writ of habeas corpus.” That assertion, of course, takes the briefs into a lengthy exploration of habeas as it existed in the 18th Century, and before, back into English history.

Based on that broad view of the writ, the briefs contended that it definitely extends to the Guantanamo prisoners, and that Congress, therefore, did not have the authority to take it away as it undertook to do in the Military Commissions Act of 2006. Under the Suspension Clause, the writ may only be suspended temporarily, even in the direst circumstances of a threat to the U.S. homeland, the briefs noted. But MCA would wipe it out permanently for these prisoners, the briefs added.

While conceding that the Court had ruled that Congress could validly take away the habeas writ, if it provided an adequate substitute (something the Court has found on only two occasions), the briefs asserted that what Congress has offered in place of habeas would be constitutional only if it were “virtually identical” to habeas. Under habeas, there is a clear opportunity to offer evidence favorable to the prisoner and to rebut government evidence, a right to a neutral decision-maker, the availability of release as a remedy, a speedy decision, and the right to a lawyer. The Combatant Status Review Tribunal process, set up by the Pentagon, has none of these features, the briefs argued. In the course of that argument, the briefs challenged the definition of “enemy combatant” that the CSRTs use as a basis for holding prisoners indefinitely. And, if a detainee does attempt the D.C. Circuit review process to test a CSRT decision, the briefs contended, what the detainee encounters is “only a truncated and deferential survey of the faulty CSRT process and the preordained results it yielded” – and, they asserted, it is a process that could be strung out for years, in time-consuming stages. (On this point, the briefs relied upon the D.C. Circuit’s subsequent ruling, on the nature of the DTA review process, in Bismullah v. Gates, on July 20. That decision, according to the briefs, reveals the failings of the entire substitute enterprise.)

Merits Brief – the Government

The Bush Administration’s combined merits brief in the two cases sought to take advantage of the view, expressed by four of the Justices last year, that the country benefits when “democratic means” are used to resolve how to “deal with danger.” That has now been done, the government argued, through the balance that the President and Congress had struck in eliminating habeas for detainees and substituting an alternative status review system. In another major focus of the brief, the government contended that the Guantanamo detainees “enjoy more procedural protections than any other captured enemy combatants in the history of warfare.”

The Court, it contended, should allow that system to function, and should not rule that the detainees are entitled to more. The brief also included a suggestion for judicial modesty, arguing that the Court should refrain from overruling an enduring precedent from the World War II era – the 1950 decision in Johnson v. Eisentrager – and arguing that the only way to rule that the detainees now have a constitutional right is to overturn that decision. Eisentrager made clear, the brief noted, that “aliens held outside the sovereign territory of the United States” do not have rights under the U.S. Constitution. The Rasul decision did not establish a constitutional right of habeas, but only acknowledged one under federal statute.

The Administration took on the historical findings of the detainees’ briefs, arguing that, in 1789, the common law writ of habeas would not have extended beyond the U.S.’ territorial limits. The Suspension Clause, it argued, “has only domestic application.” It “does not speak to the application of the writ in the context of military operations abroad,” the government asserted. “That omission is powerful evidence that the protection afforded by the Suspension Clause does not extend to overseas detentions of aliens in the first place. It would be absurd for Congress to have the power to suspend the writ within the United States but to lack any such authority, regardless of exigency, as to military operations on foreign soil.”

In any event, the brief contended, whether the detainees can show a historical basis for their habeas claim is not decisive, because the President and Congress have succeeded in displacing any such right with a wholly adequate substitute. The CSRT and DTA review process now in place, the brief added, set up a system that provides protection beyond that available under the Geneva Convention for prisoners of war. The Supreme Court, it argued, found such a system adequate for U.S. citizens in one of its first detainee rulings in 2004.

While urging the Court to reject the detainees’ appeal, and return them to the D.C. Circuit to seek some remedy there, the government brief said that if the Court should reach the merits of the detention of these prisoners, it should find that they are lawful. Relying on Congress’ post-9/11 resolution, the brief said, the government has full authority to do what is necessary to use force against those responsible for the terrorist attacks in 2001.

Amicus Briefs

Predictably, the cases have drawn a substantial file of amicus briefs, but there is a considerable numerical imbalance: 22 briefs support the detainees, two support a separate brief in the case by detainee Omar Khadr, and four support the government. Khadr has filed a brief technically as a respondent in the case, but essentially is seeking much the same relief as other detainees – except that he is doing so as one who faces war crimes trial before a military commission. Among the amici in the case is Salim Ahmed Hamdan, who also is facing a commission trial; he urged the Court to sustain a habeas right for him even if it does not do so for the other detainees who have not been charged.

Many of the briefs supporting the detainees focus on the history of the habeas writ, but some have singled out particular issues they wanted to press. For example, the National Institute of Military Justice launched a verbal assault on the treatment of detainees at Guantanamo, and argued that 93 percent of the detainees were captured by someone other than U.S. or coalition partners when the U.S. was paying bounties for prisoners. Louise Arbour, the United Nations’ senior official for human rights, argued that an international convenant on human rights that the U.S. joined 15 years ago works in the detainees’ favor. There are retired military officers arguing that American service members captured abroad would suffer from the example of Guantanamo, and 20 former federal judges complain of possible use of torture to obtain evidence that is being used by CSRTs. A wide range of scholars of international law, constitutional law, and legal history have added their views.

Khadr, who was 15 years old at the time he was captured in Afghanistan while engaging in military combat, has drawn the support of the Juvenile Law Center claiming that military commissions have no jurisdiction over minors, and international law scholars argue that the law of nations requires special protection for children caught up in criminal proceedings.

Conservative legal advocacy organizations – such as the American Center for Law and Justice and the Criminal Justice Legal Foundation – supported the Bush Administration position unqualifiedly, arguing that habeas is not available to the detainees for a variety of legal and policy reasons. A group of retired military officers, together with advocacy groups, argued that the courts should not second-guess the joint determination of Congress and the White House on how to deal with detainees.


The Supreme Court’s quite surprising turnabout in these cases – first denying review, then granting review about four months later – suggests strongly that the Court is ready to resolve the ultimate questions on habeas and the adequacy of the substitute provided by Congress, rather than to require the detainees to pursue their cases first in the Detainee Treatment Act process at the D.C. Circuit. A go-there-first rationale supported the initial denial of review, but something that developed after that – no one but the Justices knows what it might be – appears to have moved the Justices beyond that point. The DTA process, as subsequent developments have shown, appears to be moving at a very slow and labored pace, and is fraught with difficulty, especially for the government. The Court has been made aware of some of those perceived flaws.

One easy speculation about the grant of review is that Justice John Paul Stevens, the author of Rasul, was able to persuade Justice Anthony M. Kennedy to change his mind and to opt for review now. Stevens and Kennedy were the two who suggested in April that the detainees return to the Circuit Court for initial attempts at relief. It would have taken five votes to grant review after the initial denial, and it was already obvious that three Justices – Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter – were in favor of prompt review.

The cases are, in their detail, exceedingly challenging for the Court, and the prospect for a deep division is great – over the history of habeas, over the question of deferring to Congress and the White House, and over the adequacy of the substitute mechanisms.