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Boumediene Guest Commentary: Richard Samp of WLF

This post was authored by Richard Samp of the Washington Legal Foundation.  The group filed an amicus brief in Boumediene v. Bush in support of the respondent, on behalf of seven retired generals and admirals.

The Court’s 5-4 decision striking down the Military Commissions Act is hardly surprising, given its prior decisions in Rasul and Hamdan and the tenor of the oral argument last December.  But the sweeping nature of its assertion of judicial supremacy is nonetheless breathtaking.  It is entirely foreseeable that within the next few months, district judges in D.C. will have ordered that classified evidence be turned over to the detainees’ attorneys, and that the military will release more than a few of the detainees rather than comply with the discovery orders.  What follows are a few random thoughts on a deeply disappointing decision.

First, the Court did not buy into the detainees’ principal historical argument — that extension of the writ to aliens being detained overseas was consistent with English tradition.  The best that the majority could muster was that search of the case law “reveals no certain conclusions.”  (The four dissenters thought it “entirely clear” that habeas corpus did not extend beyond “the sovereign territory of the Crown” under English common law.)  Instead, the majority came up with what it dubbed a “functional” test for determining whether constitutional rights should be given extraterritorial application.  In the course of doing so, the majority sub silentio overruled a number of precedents, principally Johnson v. Eisentrager, the 1950 decision holding that habeas jurisdiction did not extend to Germans being held in an American military prison located in Germany.  While the majority purported to distinguish Eisentrager, it did so only half-heartedly.  If there is anyone who seriously thinks that today’s decision can be squared with Eisentrager‘s holding (stated explicitly on several occasions by Justice Jackson) that the Constitution does not empower courts to issue writs of habeas corpus to aliens abroad under any circumstances, I would be interested hearing their thinking.  Of course, the majority had a vested interest in denying that it was overruling precedent.  Since the Court is admittedly second-guessing the combined wisdom of Congress and the Executive Branch on how best to address detainees’ claims of innocence, it did not want to admit to rejecting prior case law as well.  But its less-than-candid approach is difficult to square with any coherent theory of stare decisis.

Second, there is no longer any rationale for keeping the Gitmo detention facility open.  Given the Court’s view that the detainees should be treated as though they are being held in sovereign U.S. territory, they might as well be moved to a more convenient location within this country.  And closing the facility would eliminate a major public relations headache.  One can assume that Islamic terrorist captured hereafter will be held at undisclosed overseas locations that federal courts have not yet deemed subject to their habeas jurisdiction.  However, the sweeping nature of today’s decision suggests that the Court will ultimately hold that habeas jurisdiction extends to where ever the American flag goes.

Third, the majority seems to call into question the continued viability of Hamdi, in which a majority of the justices just four years ago outlined what it deemed acceptable administrative procedures for determining whether U.S. citizens can be held as enemy combatants.  For example, five justices in Hamdi endorsed use of hearsay evidence.  Yet, in reviewing the CRST procedures used to determine whether overseas aliens are enemy combatants (procedures which the government had modeled on Hamdi), the majority faulted those procedures because they contemplated use of hearsay that would undermine the ability to cross-examine witnesses.  It is fair to assume that defense attorneys will soon be requesting district judges to order U.S. soldiers and their Afghan allies to leave the field to testify in federal court in Washington.  For good measure, the majority made clear that it was calling into question the continued viability of Quirin and Yamashita, 1940s-era precedents that upheld procedures used by World War II military tribunals.

Finally, the Court hinted that even if the military demonstrates that a detainee is an enemy combatant, there may be constitutional limits on its power to hold the detainee indefinitely.  Hamdi was the latest of a long line of cases that have recognized the right of the government to detain enemy combatants for the duration of hostilities.  But the majority today suggested that because the war with Islamic militants may continue for many years to come, the Constitution imposes a durational limit on such detention.  Indeed, the Court explicitly faulted the MCA for failing to allow such constitutional claims to be raised.  Many of the detainees have raised such claims in their pending habeas petitions.  Those claims are a key part of the claims of the detainees whose support for the Taliban or al Qaeda is not open to serious question.