What's at Stake in the Latest Guantanamo Bay Case?

By MICHAEL C. DORF
Wednesday, Dec. 05, 2007

The Supreme Court hears oral argument today in Boumediene v. Bush, which presents the question whether the Military Commissions Act of 2006 is unconstitutional. Boumediene is the third in a string of cases involving the scope of the right of habeas corpus for foreign detainees held at Guantanamo Bay. In the Court's two prior rulings--in Rasul v. Bush in 2004 and in Hamdan v. Rumsfeld in 2006--the Court invalidated Bush Administration policies regarding Guantanamo detainees. In those cases, however, the Justices managed to duck the question whether the detainees' constitutional rights were violated, relying on statutory and treaty grounds instead. Today's case squarely places the constitutional issue before the Court.

In this column, I shall preview four of the key questions at stake in Boumediene: (1) Does the Constitution protect a right of habeas corpus at all? (2) What is the constitutional status of Guantanamo Bay? (3) Did Congress provide an acceptable substitute for habeas? (4) Assuming the Constitution does protect some right of habeas corpus, should that right be interpreted as evolving over time or in accordance with the original understanding of the framers and ratifiers in 1789, and if the latter, how should that original understanding be conceived?

Each of these questions is important in its own right, and the last has far-reaching consequences for other cases, including another blockbuster on the Court's current docket: District of Columbia v. Heller, which presents the question whether the District's restrictive gun control law violates the Second Amendment.

The Supreme Court's First Two Guantanamo Bay Decisions

The Bush Administration's decision to hold non-citizens captured in Afghanistan and elsewhere at the Guantanamo Bay Naval Base has been subject to a number of legal challenges. The Administration has consistently taken the position that the federal courts lack authority to adjudicate the legality of the detentions, and the planned trial of some detainees before military commissions. In the two prior such cases that reached the Supreme Court, the Justices rebuffed the Administration.

In 2004, in Rasul v. Bush, the Court rejected the Administration's argument that an alien with no property in, or other connection to, the United States, who is held outside the United States, has no right to habeas corpus review in a domestic civilian court. The Administration relied on World War II-era cases, but the Court's majority found that its subsequent precedents interpreting the habeas statute had broadened its scope. Jurisdiction over the ultimate custodian holding the detainee sufficed to establish habeas jurisdiction, the Court found.

Congress then enacted the Detainee Treatment Act (DTA) of 2005, which, the Administration claimed, changed the statute on which the Court had relied in Rasul, so as to eliminate habeas review for Guantanamo detainees. Not so, the Court ruled in Hamdan v. Rumsfeld. A majority of the Justices found that the DTA did not apply to pending cases. On the merits, the Court ruled that common article 3 of the Geneva Conventions--made applicable to military detainees by the Uniform Code of Military Justice--precluded trial by the military commissions the Administration had established.

Congress responded again, this time with the Military Commissions Act (MCA) of 2006. The MCA makes unmistakably clear that it does apply to pending cases, and it authorizes limited judicial review of combatant status determinations and military trials only after the completion of those proceedings. The issue in Boumediene is whether elimination of habeas in this way can be reconciled with the Constitution.

The D.C. Circuit upheld the MCA. As I explained in an earlier column, the court said that the Constitution protects a right to habeas corpus, but only to the extent that habeas corpus was available when the Constitution was adopted in 1789. And, the D.C. Circuit said, in 1789, non-citizens (or, in the case of Great Britain, non-subjects) detained outside the sovereign territory would not have been able to seek a writ of habeas corpus.

Is There a Constitutional Right to Habeas Corpus?

The D.C. Circuit accepted that the Constitution protects some right to habeas corpus; the issue before that court was the scope of that right. But in the Supreme Court, an antecedent question may be contested by the Justices: Does the Constitution protect any right to habeas at all?

The "Suspension Clause" of Article I, Section 9 provides: "The 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." In the 2001 case of INS v. St. Cyr, the Supreme Court said that, at a minimum, the Suspension Clause protects a right to habeas corpus as that remedy was understood in 1789. That statement, however, was not technically part of the holding in the case, and thus some Justices may not consider it binding in Boumediene.

The issue actually decided in St. Cyr was whether Congress had eliminated habeas corpus for a particular category of aliens within the United States. To construe the statute at issue there to eliminate habeas would raise a serious constitutional question, the Court said, and so a majority of the Justices employed the well-established principle that hard constitutional questions should be avoided if to do so by means of statutory interpretation is possible, and thus they construed the statute to preserve habeas.

The St. Cyr Court did not actually rule that the Constitution protects a right to habeas corpus, however. Justice Scalia, joined by the late Chief Justice Rehnquist and Justice Thomas, dissented in St. Cyr. Scalia said that the Constitution contains no right to habeas. The Suspension Clause, he contended, prevents Congress from temporarily suspending whatever habeas statute Congress has enacted (absent the emergency conditions justifying suspension), but does not prevent Congress from permanently eliminating habeas.

Justice Scalia's argument is not quite as bizarre as it might at first appear. After all, in the 1807 case of Ex Parte Bollman, Chief Justice John Marshall said that the federal courts have no jurisdiction to grant writs of habeas corpus unless that power has been specifically conferred on them by Congress. By implication, if Congress has not conferred on the federal courts jurisdiction to grant writs of habeas corpus--or if Congress has permanently repealed that jurisdiction--the federal courts are powerless to do so.

However, there are two principal difficulties with the view that the Suspension Clause only protects against temporary suspensions. The first is functional: A permanent elimination of habeas would seem to be a greater threat to liberty than a temporary suspension, and so it is difficult to see why the Constitution's framers would have bothered forbidding the less serious, but not the more serious, threat.

Second, even if one were inclined to distinguish between "temporary" and "permanent" suspensions, it is not apparent how one would do so. There is no such thing as "permanent" legislation. Congress is free to enact, repeal, re-enact, and modify its statutes as frequently as it wishes. A rule that permits Congress to "permanently" repeal habeas necessarily permits Congress to do so temporarily.

But what about Ex Parte Bollman's statement that habeas exists at the whim of Congress? The Court could circumvent this principle by holding that absent a statute vesting the power to grant writs of habeas corpus in the lower federal courts, individual Supreme Court Justices would necessarily have the power to grant such writs. After all, under the Constitution's Article III, Congress was not even required to create any lower federal courts in the first place, and so the Justices would be the logical original repository of this power. (Another possibility would be to say that absent federal court habeas, state courts would have to be available to grant writs of habeas corpus to challenge federal executive detention, but that would require overruling or at least substantially cutting back on Tarble's Case, decided in 1871.)

The Status of Guantanamo and the MCA's Substitute Remedy

Whatever the strength of these arguments, it is highly unlikely that five Justices would rule that the Constitution contains no affirmative right to habeas corpus even in the absence of a valid Suspension by Congress. More likely, the case will come down to questions of the scope of the habeas right.

One issue is how to classify Guantanamo Bay. In the Rasul case, the Court said that because of the effective control the United States exercises over the territory, the presumption that federal laws lack extraterritorial effect should not apply to Guantanamo. But that was before Congress amended the habeas statute to make it clearly inapplicable to Guantanamo, eliminating the ambiguity that such a presumption addresses.

The question in Boumediene is different: whether, for constitutional purposes, Guantanamo should be treated as part of the sovereign territory of the United States. If--as the D.C. Circuit held--the constitutional right to habeas does not apply to aliens held outside U.S. sovereign territory, then the status of Guantanamo is crucial.

Perhaps the best way for the Justices to duck the core issue in Boumediene would be to find that the judicial review provisions of the MCA are a constitutionally-sufficient substitute for habeas. Only a hollow formalism would require that the courts be permitted to grant writs that are called habeas corpus. Suppose, for example, that Congress repealed all federal court authority to grant habeas corpus but simultaneously substituted a remedy called "shmabeas shmorpus." If shmabeas provided all the relief to which petitioners were previously entitled under habeas, then the substitution would clearly be permissible.

The difficulty, however, is that unlike shmabeas, the judicial review mechanisms contained in the MCA do not fully substitute for habeas. The scope of relief available under the MCA is, in important respects, narrower than the scope of relief available under habeas.

The Core Issue: The Scope of the Constitutional Right

Accordingly, the core issue in Boumediene is one of scope: Who has a constitutional right to file for habeas and when? This issue is difficult because it asks the Court to draw a somewhat arbitrary line. On one hand, it is plain that if there is any constitutional right to habeas, then it must be available for persons who were lawfully within the United States before being detained by the executive. On the other hand, there are some aliens held overseas who should not be entitled to habeas: During wartime, it is simply not practicable for federal judges in the United States to judge the lawfulness of battlefield detentions thousands of miles away.

Guantanamo falls somewhere in between those extremes. It is not unambiguously within the United States, but it is also nowhere near an active battlefield. Considered in functional terms, the question is not self-answering, but the relevant considerations are not difficult to identify: As the distance from the theater of combat and the length of detention increase, the argument for habeas grows stronger. Moreover, the more closely that the procedural mechanisms for distinguishing enemy combatants from non-combatants and for distinguishing guilty from innocent come to resemble a civilian trial, the weaker the case for searching factual review by a civilian court.

Considerations such as these played a role in the Court's 2004 decision in Hamdi v. Rumsfeld, which rejected the Administration's claim of authority to detain U.S. citizens without a court adjudication of combatant status or guilt. In an opinion by Justice O'Connor, the Court determined the procedural protections to which citizens are entitled by balancing the innocent citizen's interest in avoiding an erroneous deprivation of his liberty against the government's interest in effectively pursuing national security.

Changed Circumstances and the Original Understanding

Different legal doctrines figure in the question of what procedures a citizen is due before the government may detain him and the question of when non-citizens are entitled to habeas relief, but the underlying considerations are broadly similar. Nonetheless, a majority of the Court in the Boumediene case may not even evaluate the functional considerations. The D.C. Circuit, after all, treated the constitutional issue as a question of history: What was the scope of the writ of habeas corpus in 1789?

The Supreme Court should not put the question that narrowly. As I have argued at length in other columns (most recently in discussing the "outing" of Dumbledore), originalism is a flawed approach to constitutional interpretation. But even self-professed originalists recognize the need for flexibility in some circumstances.

Consider the 1991 case of County of Riverside v. McLaughlin. The Supreme Court ruled that the Fourth Amendment permits a suspect to be held in custody for up to 48 hours after his arrest before he is brought before a neutral magistrate to be arraigned. For the majority, this conclusion properly balanced the interests of the government against those of the suspect.

Justice Scalia dissented on originalist grounds. When the Fourth Amendment was adopted in 1791, he said, the accepted rule was that an arrested suspect had to be brought before a magistrate as soon as reasonably possible. Given the limits of Eighteenth Century travel, at that time, a reasonable time period might have been several days. But to his credit, Scalia understood the common rule not as one relating to the particular time limits applied in the Eighteenth Century; the Constitution, he said, requires a reasonably prompt arraignment, and what would have counted as reasonably prompt in 1791 would not count as reasonably prompt 200 years later. Thus, Scalia would have allowed the government only 24 hours.

If the Justices decide to base their decision in Boumediene on the original understanding of habeas corpus, then they should likewise take account of changed circumstances. The chief reason that aliens held outside the sovereign territory had no right to habeas in 1789 was that such persons often could not be brought before a judge without substantial expense and possible threat to national security. Today, however, it is possible for a federal judge to consider a habeas petition without requiring the prisoner to be transported to his courtroom--and in those rare instances in which live testimony might be necessary, modern technology offers possibilities that would have been unimaginable in the Eighteenth Century.

Thus, in practice, a jurisprudence of original meaning can itself give rise to an "evolutionary" understanding of the Constitution where, as Justice Scalia maintained the Court should have done in his County of Riverside dissent, judges not only ask what the literal practice was at the time the relevant constitutional text was adopted, but also ask why that was the practice. If 48 or 72 hours was an acceptable period within which to arraign a suspect only because of the vicissitudes of horse travel in 1791, then the Constitution is best understood to adopt the principle of "reasonable promptness," rather than the particular time limits that constituted reasonable promptness long ago.

This last point applies far more broadly and could well be decisive in another high-profile case currently pending before the Court. In District of Columbia v. Heller, the Justices must decide whether the Second Amendment forbids the District from enacting a complete ban on handguns. Much recent scholarship joins issue over the question of how the Second Amendment was understood when it was ratified in 1791. Yet that scholarship often overlooks the fact that organized police forces did not exist at that time, and so both militia service (to which the Second Amendment refers) and private use of firearms for self defense, take on a very different cast in modern times.

That is not to say that the Supreme Court will, or even should, uphold the District's gun ban. It is to say that where circumstances have changed substantially--as they have with respect arrests, military detention, and firearms use--the concrete original understanding of a constitutional provision is at best a good place to commence a search for a general rule of law embodied by a constitutional provision. It is not a proper place to conclude that search.


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at www.michaeldorf.org.