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Early Reaction to Boumediene.

By Jack M. Balkin

The Court held 5-4, in an opinion by Justice Kennedy, that the petitioners at GTMO have a constitutional right to petition for habeas corpus and that the DTA/MCA process of D.C. Circuit review from CSRT decisions is not an adequate alternative to habeas. On the latter ruling, as I predicted, the mess of the Bismullah case might have been the straw that broke the camel's back: "The order denying rehearing [in Bismullah] was accompanied by five separate statements from members of the court, which offer differing views as to scope of the judicial review Congress intended these detainees to have. 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."

Thus, the petitioners will be able to have habeas petitions considered in district court. [UPDATE: On the basic habeas question, perhaps the most explanatory line of the majority opinion is this one: "The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain." In other words, because the Government chose to detain these prisoners at GTMO for the very purpose of avoiding a judicial check on the legality of the detentions, the Court will ensure that the constitutional guarantee extends to the naval base. Or as Gerry Neuman and Harold Koh put it in their amicus brief in Rasul: "The U.S. government should not be permitted to evade judicial scrutiny by transporting [prisoners] to Guantanamo instead of Puerto Rico."]

That's very, very big news. (More important news in the Court's decision in Munaf today -- about the habeas and other rights of U.S. Citizens detained by U.S. forces in Iraq and the "Hirota Question" -- about which more in a bit.)

But as far as I can tell just yet, the Court did not reach the two even more important questions:

1. Whether the Constitution applies to detainees held outside GTMO; and

2. What the substantive standard for detention is: "It bears repeating that our opinion does not address the content of the law that governs petitioners? detention. That is a matter yet to be determined."

At first glance, it would appear that although the decision is momentous, there are other important things that it does not do:

It does not speak to whether GTMO should be closed (although it basically undermines the Administration's principal reason for using GTMO in the first place, which was to keep the courts from reviewing the legality of the Executive's conduct).

Nor does it affect, in any dramatic sense, possible military commission trials -- with the important exception that it invites the defendants in those trials to raise constitutional defenses, such as under the Ex Post Facto Clause.

Moreover, as I wrote here last week:

"I do not see any serious impetus for congressional action before the election. Why?

Well, for one thing, the Court's decision will almost certainly not affect the MCA military commissions themselves -- the trials of a small percentage of the GTMO detainees for alleged war crimes violations -- and therefore there will be no call for a new "special court" process to replace the commissions. ([Because the Court holds that the Constitution applies at GTMO, that might enhance some of the defendants' specific claims and defenses in those trials, such as under the Ex Post Facto Clause (the argument that the conduct they are alleged to have engaged in was not a crime at the time of its commission) -- but that would not in and of itself call into question the very existence of the commissions or precipitate an overhaul of the commission process.)

What about a new detention statute, not for those detainees to be tried for violations of the laws of war, but for the vast majority of detainees being held indefinitely as "enemy combatants"? Well, [because] the Court holds that such detainees are entitled to habeas, and that the D.C. Circuit scheme is not an adequate substitute, then any new replacement regime Congress might legislate would have to effectively recapitulate the protections of habeas -- and why should Congress bother with that, once habeas proceedings have commenced?"

Full post as published by Balkinization on June 12, 2008 (boomark / email).