The recent Supreme Court decision Boumediene v. Bush held that detainees at Guantanamo have access to federal courts through the writ of habeas corpus.  Justice Kennedy’s opinion is quite interesting.  I believe it is an opinion that is very broad in some aspects, but narrow in others.

The Court’s plurality opinion found jurisdiction by looking to the common law rule that the writ of habeas is determined by sovereignty.  What is important is that the Court found that sovereignty is not determined by the general understanding of sovereignty as "power." Instead, it is determined by the legal definition of a "claim of right."  Therefore,  even though Cuba has de jure control over the territory of Guantanamo, the United States has de facto control through the lease agreement and the claim of right needed for sovereignty.  So, federal jurisdiction stretches to Guantanamo. (pg. 23-24).

One of the most important rulings of the Court was the determination as to how far (geographically) the Constitution stretches.  The Court found that the Constitution grants Congress and the President the power to aquire, dispose, and govern territory; not to decide where its terms apply.  The Court found this was particularly important in the context of the suspension clause (the power to suspend the writ of habeas).  Since the writ is designed to restrain the power of the Executive in restraining liberty then the determination of its scope should not be determined by that branch of government. (pg. 36).

Ultimately the Court developed a three part test for determining when the writ should apply: 1) the citizenship and status of the detainee and the adquacy of the process through which that status determination is made, 2) the nature of the sites where the apprehension and detention took place, 3) and the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. (pg. 37).

The Court found that there was no precedent for their decision.  There was no precedent that held that noncitizens held by the United States in a territory under which it did not maintain de jure sovereignty had rights under the U.S. Constitution.  This opinion set the precedent and is why it could be broad in its scope. (pg. 41).

Another reason that this opinion is broad was that it took up the question of whether Congress provided an adequate subsitute for the writ of habeas in its legislation as a matter of first impression.  Since the lower courts found that the writ did not apply then it did not address whether there was an adequate substitute.  Normally, the Supreme Court would remand the case to the lower courts to address the issue as a matter of first impression.  Instead, the Court found that the length of the detainees detention without proper meaningful judicial review of their status constituted an "exceptional circumstance" that allowed the Court to address the issue as a matter of first impression. (pg. 43).  The Court found, "Under the circumstances we believe the costs of further delay substantially outweigh any benefits of remanding to the Court of Appeals to consider the issue it did not address in these cases."  I’m not a historian on the Supreme Court, but this is not something the Court does regularly or lightly. (In case you are wondering, the Court determined that Congress did not provide a proper alternative in its legislation).

The reason the opinion is somewhat narrow is that it stressed the peculiarity of the facts before it.  The "war on terror" is one of the longest wars in U.S. history, the detainees have been held for six years, the U.S. has de facto control over GITMO, and federal judicial review is not impractical or a severe burden on the military.  It is highly doubtful that given a different set of facts (i.e. detainees held in any other part of the world) that the Court would reach the same decision.  And the Court would most certainly not reach the same decision if the detention took place in an active theater of war.

It is important to note that the Court did not strike down the military boards.  The Court only found that Congress did not properly suspend the writ of habeas under the suspension clause and did not provide a proper alternative to habeas.  It did not find the military boards or, perhaps more importantly, the detention of these individuals illegal. 

Ultimately, this decision has given the detainees access to an adversarial hearing before a neutral decision maker.  What a novel idea for the United States!

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