Legal Commentary

I have read Munaf, but not Boumediene in full, so for the moment I leave detailed commentary to others. I wanted to focus on a small aspect of the analysis in both cases: The Court finally seemed to separate the jurisdictional questions of whether a federal court can assert jurisdiction and consider a habeas petition from the substantive question of whether the petitioner is, in fact, in custody in violation of the Constitution and laws of the United States and is entitled to the relief sought (typically, release from custody).

This split is the essence of Munaf. The Court held that the district courts could assert jurisdiction (the basic, root power to hear, consider, and decide the issues in the case) over the petitions and decide whether or not to grant relief. It then decided that the petitions "do not state grounds upon which habeas relief can be granted" (slip at 15), clearly merits-based language. Similarly, as Marty has noted, Boumediene Court addressed only the issue of jurisdiction, concluding that Gitmo detainees could file and have the court consider habeas petitions, leaving for the lower courts to consider in the first instance what legal rights those detainees possess and whether they state a claim for relief.

Is this a big deal, since, at the end of the day, Munaf and Omar will be turned over to Iraqi authorities and possibly (likely?) tortured? Deborah Pearlstein thinks so and I would agree. The habeas debate has been another example of the inappropriate entanglement of jurisdiction and substantive merits, the separation of which has been an ongoing scholarly focus. Much of the debate and commentary about Gitmo and War-on-Terror detentions has failed to focus on the question of underlying constitutional and legal rights, focusing instead on the shorthand question of whether detainees are "entitled to habeas." But habeas simply is a form of jurisdictional grant, a power vested in the court to hear appropriate cases alleging detention in violation of the law and to grant appropriate relief in appropriate cases.

But habeas has no real content without the underlying substantive rights that protect individuals from detention. And habeas has no obvious limits without considering those underlying substantive rights. To say "detainees are not entitled to habeas" does not get us anywhere. The habeas power necessarily rests with a court (absent suspension) to hear cases of unlawful detention. Whether the writ (i.e., relief) should be granted depends only on whether the petitioner possesses an underlying substantive right that renders the detention unlawful.

Maybe this is formalism at work. And Steve may be right that it was odd, and perhaps unnecessary, for the Court to reach the merits as to either Munaf or Omar. But I am glad to see that, after these cases, the debate and commentary can focus on the appropriate question of legal rights and not on questions of jurisdiction.