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Key Quotes from Boumediene v. Bush: In this post, I want to excerpt the key passages from the majority opinion in Boumediene v. Bush. Boumediene is a remarkably long opinion — 70 pages, probably Justice Kennedy's longest majority opinion ever. Here are the key sections:

   First, in Justice Kennedy's majority opinion, the Court concludes that the detainees have a Constitutional right to habeas relief at Gitmo. Here's the holding stated in the majority opinion:
Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court.
The Court then goes on to talk a lot about the history of habeas, and then distinguishes Eisentrager very much along the lines of Justice Kennedy's concurrence in Rasul v. Bush. The Court then concludes that the detainees have a constitutional right to habeas:
It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding.

We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. . . . The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention.
The Court then looks to whether the alternative to traditional habeas is adequate and effective, which the Court interprets as asking if the alternative is similar to traditional habeas. The Court concludes that the law Congress passed, the Detainee Treatment Act (DTA), is not adequate and effective alternative to traditional habeas:
Congress intended the Court of Appeals to have a more limited role in enemy combatant status determinations than a district court has in habeas corpus proceedings. The DTA should be interpreted to accord some latitude to the Court of Appeals to fashion procedures necessary to make its review function a meaningful one, but, if congressional intent is to be respected, the procedures adopted cannot be as extensive or as protective of the rights of the detainees as they would be in a [habeas] proceeding. Otherwise there would have been no, or very little, purpose for enacting the DTA.
The Court then details ways in which the DTA is insufficiently protective, and concludes that the problems with the DTA are too major to allow minor tinkering:
[E]ven if it were possible, as a textual matter, to read into the statute each of the necessary procedures we have identified, we could not overlook the cumulative effect of our doing so. To hold that the detainees at Guantanamo may, under the DTA, challenge the President’s legal authority to detain them, contest the CSRT’s findings of fact, supplement the record on review with exculpatory evidence, and request an order of release would come close to reinstating the §2241 habeas corpus process Congress sought to deny them. The language of the statute, read in light of Congress’ reasons for enacting it, cannot bear this interpretation. Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas corpus.

Although we do not hold that an adequate substitute must duplicate §2241 in all respects, it suffices that the Government has not established that the detainees’ access to the statutory review provisions at issue is an adequate substitute for the writ of habeas corpus. MCA §7 thus effects an unconstitutional suspension of the writ.
Finally, near the end of the decision, the Court gets to the timing of habeas review. Can a court step in with a habeas proceeding immediately, or do they have to wait for CSRT hearings? Here's what Justice Kennedy concludes:
In cases involving foreign citizens detained abroad by the Executive, it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody. If and when habeas corpus jurisdiction applies, as it does in these cases, then proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time. Domestic exigencies, furthermore, might also impose such onerous burdens on the Government that here, too, the Judicial Branch would be required to devise sensible rules for staying habeas corpus proceedings until the Government can comply with its requirements in a responsible way.

Our holding . . . should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status.
However, the Gitmo detainees have been held for up to 6 years, and they deserve a prompt hearing:
While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.
Justice Kennedy's opinion concludes with a message to the Bush Administration:
Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.

Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. 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. . . The laws and Constitution are designed to survive, and remain in force, in extraordinary times. 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.
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Boumediene, Executive Power, and Congressional Power:

I have not yet had a chance to fully study the Court's opinion in Boumediene v. Bush. But I will note one very important aspect of this case that differs from the Court's previous war on terror decisions rebuking the Bush administration. In earlier cases such as Rasul v. Bush, Hamdi v. Rumsfeld, and Hamdan v. Rumsfeld, the Court invalidated unilateral actions taken the by the executive, repudiating the Bush Administration's ultra-expansive interpretation of wartime executive power. However, Hamdan specifically left open the possibility that the administration's Guantanamo policies might be constitutional if authorized by congressional legislation. The Republican Congress (for the most part) provided that authorization in the Military Commissions Act of 2006.

In Boumediene, the Court challenges congressional power as well as the executive. It strikes down as unconstitutional several provisions of the Detainee Treatment Act of 2005 and the MCA. This is a nearly unprecedented situation where the Court rejected an important assertion of wartime power backed by both of the other branches of government. To my knowledge, virtually every previous case in which the Court ruled an important wartime policy unconstitutional was one where the policy in question was adopted by the executive acting alone.

As a political matter, the majority justices might might well have reasoned that they could avoid a dangerous interbranch confrontation because the Republican Congress which enacted the DTA and MCA is now gone, and the Bush Administration has only a few months remaining. But even a Democratic administration and Congress might be reluctant to give terrorist detainees as much protection as Boumediene requires.

The fact that the decision challenges congressional power as well as executive power doesn't mean that it is necessarily wrong. On that question, I am divided in my own mind. The difficult question is whether habeas corpus applies to enemy combatants seized in operations abroad (I don't doubt that the Bush Administration was wrong to assert that it doesn't apply to US citizens accused of terrorist acts and captured in the US).

Importantly, the Court does leave Congress a way out. If it wants to, Congress could still strip detainees of the protection they get under Boumediene by enacting a statute suspending the writ of habeas corpus under the Suspension Clause. With a Democratic Congress, I suspect that we might get a new detainee law that suspends the writ for certain categories of terror detainees, but also perhaps gives them more procedural rights than they got under the Republican-enacted MCA. For a variety of reasons, I doubt that the Democrats will be willing to take the risk of allowing the detainees to retain full habeas rights. If they don't act and a terrorist released as a result of a habeas petition commits some atrocity, the Dems will take a predictable political hit. Especially if Obama wins the presidential election, expect the Democrats to enact some sort of partial suspension of habeas corpus, combined with new, but limited statutory procedural rights for detainees. At least that is my tentative prediction.

UPDATE: Some commenters cite Ex Parte Milligan as an example of a case where the Court invalidated a joint congressional-executive wartime policy. In a narrow technical sense, they have a point. However, it is important to recognize that Milligan was decided only after the war in question (the Civil War) was over. The Court would have been much more reluctant to take on both of the other branches if the war had still been ongoing (as of course it still is in the Boumediene case).

UPDATE #2: As Marty Lederman points out in an e-mail to me, the Milligan decision actually held that the president lacked congressional authorization for his actions in so far as the Habeas Corpus Act of 1863 forbade him to subject civilians to military jurisdiction in states where the civilian courts continued to operate. The Court also ruled that, in some situations, even Congress would lack the power to subject civilians to military trials; but it emphasized that Congress had not taken any such action in the case before it. Be that as it may, it is significant that even in Milligan, the Court did not repudiate both of the other branches of the federal government head on, in the way it has now done in Boumediene.

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It's Unlikely, But Worth Noting: In today's debates on Boumediene v. Bush, I think it's worth noting that there's a way in which Congress could still go back to the pre-Rasul or pre-Boumediene state of the law: Congress could formally suspend the Writ as it applies to Guantanamo Bay. The Suspension Clause does not require the writ of habeas corpus; rather, it states that "[t]he 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." (emphasis added)

  As far as I know, the Court has never analyzed whether the "public safety" exception is justiciable or is a political question, or what standards could apply to judicial review of it. (See my colleague Amanda Tyler's article, Is Suspension a Politcal Question?, for more.) But if the political branches wanted to go back one more time, they could, subject to the possibility of judicial review of their assessment of the need for the suspension. To be clear, I'm not recommending this; and I think it's extremely unlikely that it would happen for political reason. But I think it's worth noting that it's possible.
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Can Congress Suspend Habeas in Guantanamo?

In his post below, Orin suggests that if Congress were to object to the Court's Boumediene decision, it could "formally suspend the Writ as it applies to Guantanamo Bay" under the Constitution's Suspension Clause. I am not so sure.

The Suspension Clause provides that "[t]he 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." This language seems to impose two separate conditions on the use of the clause: 1) "Rebellion or Invasion" and 2) "public Safety." Assuming, for the sake of argument, that these requirements are justiciable (an assumption I don't necessarily accept) what showing would the government have to make? Would Guantanamo itself have to be invaded or subject to a rebellion? Or would a rebellion or invasion somewhere else suffice? Even if not justiciable, the application of these requirements to Guantanamo seems problematic at a conceptual level. And insofar as Boumediene could be used support the application of the Suspension Clause's requirements to other territories outside of the de jure sovereignty of the United States, it seems to me that the conceptual problems would only increase. Am I missing something?

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Could Congress Suspend the Writ of Habeas Corpus in the War on Terror?

In my last post on the Court's decision in Boumedienne, I suggested that Congress could, if it wanted to, revoke War on Terror detainees' rights to a hearing in federal court by suspending the writ of habeas corpus. In his own more recent post, Jonathan Adler raises some interesting questions about whether Congress really could suspend the writ. As Jonathan puts it:

The Suspension Clause provides that "[t]he 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." This language seems to impose two separate conditions on the use of the clause: 1) "Rebellion or Invasion" and 2) "public Safety." Assuming, for the sake of argument, that these requirements are justiciable (an assumption I don't necessarily accept) what showing would the government have to make?

Before trying to address this issue, I should note that the meaning of these two requirements of the Suspension Clause have never been litigated in the Supreme Supreme Court, and that I am not a habeas expert. Therefore, I'm far from certain that I'm right about what I say below, and would welcome correction from specialists in the field.

That said, I think Jonathan asks exactly the right questions. However, I am less skeptical than he is that the requirements in question could be met. The War on Terror surely doesn't qualify as a "Rebellion," but Al Qaeda's attacks on New York and Washington DC and its attempts to attack other targets in the United States could potentially qualify as an "Invasion." A relatively small invasion to be sure (in terms of the number of enemy combatants involved). But a big one in so far as it has killed more Americans than any other incursion of enemy forces onto US soil in our history, at least since the War of 1812.

One could potentially interpret the requirement of "Rebellion or Invasion" to mean that the writ can only be suspended in those areas where the invasion is ongoing; Jonathan, in his post, seems to make this assumption or at least raise the possibility that it is correct. If the assumption is valid, it rules out suspension of the writ with respect to enemy personnel captured abroad or anywhere in the United States other than New York City and Washington, DC on the day of September 11, 2001 itself. However, I don't think the assumption is valid. No such restriction on the scope of the suspension power is is evident in the text. And it would be somewhat absurd to hold that Congress can only suspend the write of habeas corpus in those parts of the United States where US authorities have no ability to detain people anyway because the areas in question are occupied by enemy forces. I also don't think that the constitutional validity of suspension depends on whether the detainees are held at Guantanamo or some other site. Nothing in the clause suggests that suspension is only permitted if the detainees are held in the same general area as the location of the rebellion or invasion that triggered the Suspension Clause in the first place.

A related question is whether the "invasion" has ended now that (as far as we know) al Qaeda forces are no longer present on US soil in any significant numbers. My tentative view is that the emergency triggered by an invasion can continue so long as the war that the invasion was a part of does. It doesn't necessarily require the continued presence of enemy forces on US soil, though it probably does require a continued serious threat that they may return as part of the same ongoing conflict.

The second requirement - that "the public Safety may require" suspension - is even more difficult to assess. Much depends on the question of how much deference courts should grant to executive or congressional determinations that the public safety really would be threatened if the writ is not suspended. It seems to me that the text does mandate some degree of deference because it states that the standard is that "the public Safety may require" suspension. This suggests that the government need not definitely prove that suspension is essential to public safety.

At the same time, I don't think that the language of the Suspension Clause justifies near-absolute judicial deference to a congressional determination that the public safety requires suspension. My best guess is that the "public safety" prong of the Clause could be satisfied by something similar to proof by a preponderance of evidence. As a practical matter, I think that the Court would defer to Congress' judgment if the suspension were narrowly targeted and supplemented by some other form of due process protection for detainees.

As Jonathan indicates, the above analysis assumes that these issues are justiciable at all. It could be argued that they are within the exclusive judgment of Congress. I won't argue this issue in detail. But I doubt that the rebellion/invasion and "public safety" requirements of the Clause are completely nonjusticiable. If they were, Congress could decide that virtually any real or imagined emergency is a threat to "public safety" and then use it as an excuse to suspend the writ of habeas corpus.

To say that suspension of the writ would (probably) be constitutional is not to say that it should be done. I'm not sure that it should be enacted at all. If Congress does attempt suspension, I believe that any such effort should be narrowly focused, and supplemented with other types of protections for the rights of detainees.

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