Tuesday, December 04, 2007

Boumediene, on the Eve of Argument

Marty Lederman

I am part of an online "debate" on the Boumediene case that the Federalist Society has posted today. The oral argument is tomorrow morning. My co-discussants are former White House counsel Brad Berenson, the Cato Institute's Tim Lynch, and former federal prosecutor Andrew McBride.

FWIW, here is my opening entry, which tries to put the case in some context, followed by my response to Andrew McBride. I encourage you also to read the posts to which I'm responding, and the entire dialogue, which is continuing.

First post:
There are three primary questions before the Court in the Boumediene case to be argued on December 5th. The first question has gotten the lion’s share of the attention; and the third is the most important. But, more than likely, the primary focus of the Supreme Court argument, and of the Court’s opinions, will be on the second question.

The first question, stated most simply, is whether aliens who are being indefinitely detained by the military at Guantanamo have a constitutional right to challenge the legality of their detention in federal court. The Court will probably answer this question “yes,” at least if its 2004 decision in Rasul, and Justice Kennedy’s concurrences in Rasul and Verdugo-Urquidez, are any indication.

The Court will need to answer the second question only if, as expected, it answers the first question in the affirmative. That second question is whether Congress has provided an adequate alternative process for reviewing the legality of detentions, in lieu of the habeas procedure to which the petitioners would otherwise be entitled. In other words, does the appellate procedure established by the Detainee Treatment Act and Military Commissions Act—providing for a limited review of Pentagon detention determinations in the Court of Appeals for the District of Columbia Circuit—give the petitioners all of the protections the Constitution requires, or does it fall materially short of the review they would receive in a habeas proceeding? In this exchange, I suspect we will focus least of all on this second question, but our readers should be aware that it is likely to play a prominent role in the case itself.

The third question is the substantive merits issue that is perhaps the most important single question arising from the Bush Administration’s treatment of the so-called “war on terror”—namely, has Congress authorized the Executive branch to detain persons based upon the broad definition of “enemy combatant” that the Bush Administration has employed? In other words: Who, exactly, may the Executive detain indefinitely in the armed conflict with al Qaeda? The Boumediene petitioners have specifically asked the Court to reach this issue (See Part II of their opening brief. [Disclosure: I consulted on the Boumediene petitioners' briefs.] Because the court of appeals has not yet addressed that issue directly, the Government asked the Supreme Court not to grant cert. on it; but the Court granted the petition in its entirety.

It’s possible the Court still might not reach this third question, on the merits of the definition of “enemy combatant,” but I hope we’ll have a chance to discuss it here, because it really is the crux of the matter—in my view, the Bush Administration has not been authorized to detain the broad range of persons who come within its expansive definition of “enemy combatant.” (Again, see Part II of the Boumediene opening brief.)

For now, however, I merely want to suggest that it is very difficult to understand the stakes of the first question (Should these petitioners be afforded habeas rights?) without some understanding of the facts underlying the third question (What is the category of persons that the Bush Administration has detained, and does it have legal authority to indefinitely detain all those persons?)

Notably, Brad [Berenson]’s description of the case is not very far off from the account I’ve offered above. Except for one major difference: Brad assumes that the petitioners are “alien enemy combatants”—indeed, that they “of course aim to destroy” our Constitution.

But the whole point of the case is that these Petitioners claim to be no such thing and, perhaps even more importantly, the Bush Administration asserts the authority to detain them indefinitely even if they are not “combatants” in any usual sense, and even if they do not “aim to destroy” our Constitution or our way of life (or to destroy anything else, for that matter).

This explains the gulf between us. Brad is somewhat incredulous that all of a sudden, in this conflict like no other before it, there are a slew of military detainees challenging their detention in court. According to Brad, “[n]o Anglo-American court has ever recognized a habeas corpus right in alien enemies held outside the territorial jurisdiction of the capturing state. Not one. Ever.”

There are two basic things wrong with this strong claim. The first is that it just isn’t true. [NOTE: My apology to Brad for the next bit here. I simply overlooked his qualifier (which I quoted!) that the aliens had to be held "outside the territorial jurisdiction of the capturing state." It's not true that no court has even entertained such an alien's habeas claim, as the Boumediene Reply Brief points out. But Quirin and Yamashita are cases where the aliens were being held within U.S. territorial jurisdiction. In my next post, I explain why Guantanamo should be treated similarly. It's Andrew McBride, not Brad, who thinks that all suspected enemy aliens should be denied habeas, regardless of where they are held.] Last time I checked, the U.S. Supreme Court is, indeed, an Anglo-American court. In Quirin and in Yamashita, DOJ argued (as the SG and Brad do here) that the federal courts could not entertain habeas petitions by captured aliens suspected of being enemies. See, e.g., Quirin, 317 U.S. at 24 (“The Government . . . also insists that petitioners must be denied access to the courts, . . . because they are enemy aliens or have entered our territory as enemy belligerents.”). In both cases, the Court (which was otherwise sympathetic to the government’s claims) unanimously rejected the government’s arguments, and entertained the claims on the merits. See id. at 25; Yamashita, 327 U.S. at 9 (indicating that such enemy aliens have habeas rights until they are suspended by Congress); id. at 30 (Murphy, dissenting) (“This Court fortunately has taken the first and most important step toward insuring the supremacy of law and justice in the treatment of an enemy belligerent accused of violating the laws of war. Jurisdiction properly has been asserted to inquire into the cause of restraint of liberty of such a person. Thus the obnoxious doctrine asserted by the Government in this case, to the effect that restraints of liberty resulting from military trials of war criminals are political matters completely outside the arena of judicial review, has been rejected fully and unquestionably.”)

There are other such historical cases, too (including Territo), discussed at pages 6-8 of the Boumediene Reply Brief.

So Brad’s unequivocal historical claim is simply mistaken. His instinct, however, is understandable. After all, the U.S. presumably has detained thousands of persons in military conflicts throughout our history, and very, very few of them (other than the German saboteurs, Yamashita, Territo, etc.) have ever sought habeas relief. Doesn’t that tell us something about how these petitioners should be treated?

Well, no, I don’t think it says much at all about the detentions in this conflict, because here, unlike in previous military engagements, our military has engaged in widespread round-ups of persons who appear to be civilians, in civilian settings, and there is serious question of whether the Executive has the authority to detain such persons.

As the Boumediene brief describes the contrast:

“Unsurprisingly, admitted prisoners of war rarely brought habeas petitions and, when they did, rarely succeed on the merits. This historical fact reflects the reality that such persons (most of who were captured while in uniform on a battlefield) usually had no basis or incentive to contest prisoner-of-war status; indeed, they frequently desired it. But when a prisoner has denied that he is a detainable prisoner of war, habeas courts have consistently exercised jurisdiction to determine that issue.”

That is to say: In a traditional military conflict, most detentions occur on a battlefield, and the persons detained are obviously enemy combatants (typically in uniform) who would prefer to be detained, and be afforded POW treatment, rather than the alternative (namely, being shot on sight).

In this conflict, by contrast, our military has detained many persons who are not combatants in the colloquial sense (or who, in any event, contest that designation). This is not only because of the nature of the enemy (non-uniformed; hiding amidst civilian populations)—which makes mistaken detention much more likely—but also because the Bush Administration has been employing a definition of “enemy combatants” that goes far beyond the traditional battlefield combatant. As the government puts it, the CSRT definition of a detainable “enemy combatant” authorizes the detention of “any individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners, including [but, importantly, not limited to] any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

How does this claimed detention authority work in practice? Well, let’s take the case of the Boumediene petitioners themselves. They were not captured fighting U.S. forces in Afghanistan or, like Hamdi, surrendering a weapon there. Instead, they are Algerians who immigrated to Bosnia and Herzegovina during the 1990’s. Five of them are Bosnian citizens. On 9/11/01, each was living with his family in Bosnia. None is alleged to have waged war or committed belligerent acts against the United States or its allies. According to the Boumediene brief, they were arrested by Bosnian police in October 2001, purportedly on suspicion of plotting to attack the U.S. Embassy in Sarajevo. But the Bosnian authorities had no evidence for this charge; instead, they acted under pressure from U.S. officials, who threatened to cease diplomatic relations with Bosnia if the petitioners were not arrested. On January 17, 2002, the Supreme Court of the Federation of Bosnia and Herzegovina, acting with the concurrence of the Bosnian prosecutor, ordered the petitioners released because a three-month international investigation (with collaboration from the U.S. Embassy and Interpol) had failed to support the charges on which the petitioners had been arrested. On the same day, the Human Rights Chamber for Bosnia and Herzegovina, established under the U.S.-brokered Dayton Peace Agreement and staffed by judges from several European countries, issued an order forbidding the prisoners’ removal from Bosnia. Later that day, however, as the Boumediene petitioners were being released from a prison in Sarajevo, Bosnian police acting at the behest of U.S. officials (and in defiance of the Human Rights Chamber’s order), re-seized them and delivered them to U.S. military personnel, who transported them to Guantanamo, where they have been held for the past six years, without contact with their families.

That is to say, these petitioners are citizens of a friendly nation, seized far from any battlefield, and not engaged in any belligerent acts, let alone belligerent acts on behalf of those responsible for the 9/11 attacks. Perhaps they are agents of al Qaeda, bent on (in Brad’s words) “destroying our Constitution.” But perhaps not. I have no idea. The facts surrounding their detention, however, certainly raise a serious question about whether that detention (now going on six years) was lawful. All they are seeking is a determination by a fair and impartial tribunal of whether they in fact fall within the category of persons whose detention Congress authorized when it gave the President the power to use “necessary and appropriate force” against those responsible for the September 11th attacks.

That doesn’t sound so unreasonable, does it?
Second post:

Andrew McBride addresses the first of the three principal questions in the case: Do alleged “enemy combatants” being detained at Guantanamo have a constitutional right to challenge the legality of their detention in federal court? Andrew agrees that the Court will probably answer this question “yes,” but insists the Court will be wrong when it does so.

Andrew has two major rationales for this conclusion. His first, and broader, theory is that the Constitution simply does not protect aliens who have not “voluntarily created some peaceable relationship with this body politic.” As he puts it: “Someone whose only connection to this country is having been captured by our military while trying to harm it or its interests has no more right to invoke the writ of habeas corpus than he does to invoke a Second Amendment right to bear arms.”

I think this argument is mistaken on its merits—it is appropriate to view the Constitution, at least in some respects, as establishing structural limits on the federal government wherever it acts; it is not free to do whatever it likes to foreign persons. But whether I’m right about that or not, Andrew’s argument simply doesn’t track with longstanding established doctrine. The German saboteurs in Quirin, for example, were entitled to federal habeas rights, even though many of them had no ties with the United States at all until they alit on our shores with the intent to commit hostile acts here. To be sure, they were not entitled to the same degree of substantive constitutional rights to which U.S. citizens would be entitled; but neither were they denied constitutional protection altogether. If the plane transporting Boumediene from Bosnia had turned right at Florida, and landed at a military detention facility in South Carolina, I think there’s little doubt Boumediene would be entitled to challenge his detention on habeas. (That’s why the Vice President is so insistent on not moving the GTMO detainees to the United States—because in that case judicial process would uncontroversially attach.) The question is whether the Bush Administration can avoid that conclusion merely by having directed the plane to turn right instead of left, and to land at a base wholly owned and operated by the U.S., but just outside the U.S. mainland, rather than in South Carolina. I don’t see much of a constitutional basis for allowing fundamental rights to turn on such a formalistic and arbitrary distinction.

Andrew’s second argument is more interesting, and more provocative: As I read him, he is saying that it would simply make no sense to have federal courts entertain these habeas actions, because such review would invariably be futile: the detentions in question are automatically lawful by virtue of the President having said they are—or, at the very least, the courts may not second-guess the Executive’s detention decisions, which are “beyond judicial ken or competence.”

Here, I strongly disagree. Perhaps the courts should grant some degree of deference to the factual determinations of the Executive respecting such decisions (although the Pentagon’s record on this score certainly doesn’t inspire much confidence). And as the Court suggested in Hamdi, that deference will be greatest in the initial days of a detention, or when the detention is in the heat of battle. But these petitioners have been isolated at GTMO, far from any active battle, for six years. I just don’t see why a federal court would be incapable of evaluating the government’s habeas return and making the usual sort of factual determination that federal courts make as a matter of course on habeas petitions. Surely there is nothing in the Constitution that suggests any special judicial disability in this regard.

More importantly—and more pertinent to the present case—the courts can surely make the legal determination whether the Administration’s operative category of the class of persons who may be indefinitely detained is consistent with the detention authority that Congress has afforded the President under the Authorization for Use of Military Force. The biggest problem with the Bush detention regime is the extraordinary and unjustifiable breadth of the Administration’s definition of detainable “enemy combatants.” The government claims authority to subject to indefinite military imprisonment any individual who is “part of or supporting Taliban or al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners.” This definition is not limited to those who have actually engaged in an armed conflict against the United States or its allies. Indeed, it even includes citizens of friendly nations who are not combatants at all and whose alleged “support” for al Qaeda or for an “associated force” is unintentional: The government’s position is that the military could indefinitely detain “[a] little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan but [what] really is a front to finance al-Qaeda activities.”

Congress has not authorized such a capacious and unprecedented detention authority. Instead, it has authorized detention (and military force more broadly) only against those “nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” And as the plurality in Hamdi explained, this legislative authorization should be construed consistent with the scope of detention traditionally permitted under the laws of war. As Part II of the Boumediene brief explains, the Bush Administration category goes far beyond what the AUMF and the laws of war allow. There is no reason to think that courts cannot make this critical legal determination that the Administration’s asserted detention power is unauthorized, which is essentially a matter of legislative intent (as informed by the laws of war).

Ah, but then Andrew pulls out his trump card—the claim that the President is not bound by any limits imposed by Congress and the laws of war. “While Congress has the power to declare war,” he writes, “the President, as Commander-in-Chief, has the sole authority to determine the means of prosecuting a war in progress. . . . When the Executive is acting as Commander-in-Chief in the prosecution of war, his sphere is limited, but his authority is plenary.”

This is recognizable, of course, as the Bush Administration’s audacious view of a sweeping, preclusive Commander-in-Chief authority to disregard statutes and treaties that regulate his conduct of war—whether it be the Torture Act, or FISA, or the Uniform Code of Military Justice, or the War Crimes Act, or the AUMF, or the Geneva Conventions, the Habeas Act of 1867, proposed statutes that would require withdrawal from Iraq . . . the list, unfortunately, goes on. This is perhaps the most important constitutional question raised by this Administration. You won’t be surprised to learn that I strongly disagree with Andrew on the answer. But I won’t belabor the point here, for two reasons: First, the Solicitor General (wisely) is not making such an argument in Boumediene, and so it’s not really germane to our discussion here. And second, together with David Barron I am publishing a very long, two-part article on precisely this question in the next couple of months; and so for now I think I’ll simply beg the patience of readers interested in this question to be on the look-out.


I am less sanguine about the court's ability to answer yes on any of the three questions. Rasul will be left as statutory and not constitutional. The procedures will be considered minimal. The enemy combatant definition will be allowed to be far more capacious than the laws of war. And then the dragnets will start in earnest but - don't worry! - only of foreigners abroad.

According to [Andrew McBride], “[n]o Anglo-American court has ever recognized a habeas corpus right in alien enemies held outside the territorial jurisdiction of the capturing state. Not one. Ever.”

Andrew would have been better advised to narrow that argument to no Anglo-American court has ever recognized that a foreign POW has the right to challenge the military's designation of him as a POW in a civilian count pursuant to a habeas corpus review.

Quirin and Yamashita can be easily distinguished from the instant case because they sought habeas corpus review of criminal convictions by United States courts or military commissions. In those cases, the government brought them into our justice system and thus arguably habeas corpus review.

However, the instant question is fundamentally different from that presented in Quirin and Yamashita. The Gitmo petitioners are not seeking review of a criminal justice conviction, but instead are seeking to substitute habeas corpus review by a civilian court in place of military status hearings to determine who is or is not an enemy combatant who can be held as a POW for the duration of a war.

There is absolutely no precedence for substituting civilian habeas corpus review for military status hearings to determine whether a person is properly a POW. Indeed, the British common law which the new United States inherited and incorporated into the Constitution makes it clear that habeas corpus rights or indeed any rights of citizens are not extended to foreigners held by the Crown as POWs. The government and multiple amici have taken up this argument in their briefs to the Court.

Therefore, the petitions of the Gitmo detainees should be dismissed by the Supreme Court on the first question. Whether Kennedy will follow the law remains to be seen.

This comment has been removed by the author.

Arne: Please do not let this descend into the Bart and Arne show -- take it offline, thanks.

we can listen live via cspan radio from the supreme court for arguments tomorrow, starting at 11:15am.

The questions should be very interesting.

Prof. Lederman:

Sorry. Comment will be deleted.


"Andrew would have been better advised to narrow that argument to no Anglo-American court has ever recognized that a foreign POW has the right to challenge the military's designation of him as a POW in a civilian count pursuant to a habeas corpus review."

Does this mean that the held enemy combatants are indeed Prisoners of War, and thus entitled to the legal protections afforded by that designation?


The generic term prisoner of war as used in the habeas common law incorporated into the Constitution is simply a enemy alien detained for the duration of the war. All the Gitmo detainees fall under this definition.

The definition to which you refer is the Geneva Conventions' much narrower definition of those who qualify for GC privileges. The Gitmo detainees fail to meet one or more elements of this definition.

I would commend the government and amici briefs to which I linked above for your reading. They cover all of this in detail with cites.

Hopefully, Justice Kennedy is paying attention.

Once again, Bart begs the question: *enemy* alien? That's precisely the issue.


The question you raise was not posed by drational and therefore could not be begged.

As I posted above, the issue is whether foreigners have a constitutional right to substitute habeas corpus review by a civilian court in place of military status hearings to determine who is or is not an enemy combatant who can be held as a POW.

Time will tell whether the Court will ignore the pre-constitutional habeas corpus common law create such a right out of whole cloth.

Regarding Prof. Lederman's argument that the third question-- whether Congress has authorized the detention of "enemy combatants" as the President has attempted to define them-- is most important, it seems highly unlikely that the Court will answer this. It's perfectly coherent to say that the President does have detention authority, but that those detainess can nonetheless challenge those detentions with habeas petitions. It seems almost certain that at least five justices will rule this way; but it seems equally certain that they will be unwilling to add, for good measure, that the Boumediene petitioners cannot lawfully be held at ALL.

The point here is that questions on the identity of the detainees, who can hold them, and where, cannot even be answered by a court without gateway access to the judicial system, i.e., through habeas petitions. The habeas right (though I hesitate to call it that, since it's more a question of what Congress can and cannot constitutionally do, and less one of what's "owed" to prisoners) is the lowest common denominator here, but a ruling on this account would be significant enough that the Court is unlikely to go further. As for the adequacy of the CSRT tribunals, Hamdan precedent alone is enough to answer the question, decisively, that these are not meaningful substitutes.

I have argued that the third question precedes the second. If the Court finds that the administration's position in this case does not express a prima facie claim of combatant status, then they can rule as a matter of law that the detainees are entitled to Habeas. They never get to the question of whether facts are better evaluated by a military or judicial process in all the other cases (al Odah) where a hearing on the facts is required.

The court may not choose in this case to define "enemy combatant" except to say that Boumediene clearly doesn't fall within any of the definitions.

Scalia and Roberts appear to support my position that there is no preconstitutional common law precedent for a right to habeas review. No surprise.

However, the other justices do not seem to be eager to have the civil courts assume these reviews and were asking what standards might be required of the CSRTs. Even if Kennedy and the 4 liberals find a constitutional right to habeas review, the majority may want to end this by simply ordering certain standards for CSRT status reviews.

"Bart" DePalma:

At the risk of Cuisinarting a dead equine:

The question you raise [was Boumediene and "enemy combatant"?] was not posed by drational and therefore could not be begged.

It is one of the prime questions raised (see Prof. Lederman's point #3).

Even if we assume that "enemy combatants" held in foreign territory have no habeas rights, without some workable definition of "enemy combatant" (outside of the maladministration's 'say-so'), it would seem that you are of the impression that the U.S. gummint is free to hold (and kidnap) anyone they want in other countries without any legal constraints or recourse. This is perhaps a position that could be argued, but that being said, it would seem to be far from a general view of the powers of gummints and international law.

Stangely enough, that does seem to be the view of some in the U.S. gummint, even if it is not the prevalent view internationally. But at least in that case, the kidnapee would have a right in U.S. court once "rendered" to demand that the gummint show cause as to why he was being held. Your view seems to be that such recourse in not available as long as the magic words "enemy combatant" are said.

Without a proper showing (to a court or other disinterested party) that the person is in fact an "enemy combatant", there simply is no limit as to who can be grabbed and held ... and held indefinitely. That would seem to be the very thing that the Great Writ had been instituted to prevent. If your position is that all foreigners outside the U.S., regardless of other status, have no habeas rights, out with it. But it's hardly a common view.

As I posted above, the issue is whether foreigners have a constitutional right to substitute habeas corpus review by a civilian court in place of military status hearings to determine who is or is not an enemy combatant who can be held as a POW.

This is a misstatement of the case. For those that have had (after pressure for six years and several adverse Supreme Court rulings, at long last) CSRT reviews, the court's position would be to review the sufficiency of the CSRT and the adequacy of the evidence; for these the courts may well adopt standards of review that are as deferential to the gummints's determinations as the situations may require, consistent with basic Constitutional law and fairness. For those that haven't, there's hardly a "substitution" here; they were never given any chance, no matter how threadbare, to prove their status.


"Bart" DePalma:

However, the other justices do not seem to be eager to have the civil courts assume these reviews and were asking what standards might be required of the CSRTs. Even if Kennedy and the 4 liberals find a constitutional right to habeas review, the majority may want to end this by simply ordering certain standards for CSRT status reviews.

The reason they're asking is that one of the questions presented is whether the CSRTs (along with the statutory "review" of CSRT procedures) is a sufficient substitute for habeas review (see Prof. Lederman's Isssue #2). This question should arise only if the justices decide that the petitioners do indeed have a right to habeas review (or the equivalent).

But they can hardly rewrite the laws passed (the DTA/MCA) to include "standards"; they're pretty specific (for instance, in denying legal representation, lack of access to evidence, and the inclusion of evidence obtained by torture). Simply striking out the offending portions doesn't "cure" the process but rather makes it even more arbitrary; affirmative "standards" would have to be placed in heir stead. They would probably have to strike the CSTRs down as unconstitutional if they find they don't adequately substitute for habeas.


Bart writes:

There is absolutely no precedence for substituting civilian habeas corpus review for military status hearings to determine whether a person is properly a POW.

Has there ever been a time in the past when the US has spread its "battlefield" over the entire globe and principally hidden the criteria as to when and where it takes the fight (detains suspects)? Was there a time in the past when the US captured civilians from countries all over the world? Has there been a time when the principal 'enemy combatants' have been citizens of so many countries?


This is the dilemma. We have crated a new category of enemy, the enemy combatant, that in fact can be any civilian citizen of any country our Government chooses. They are not POWs. Scalia challenges Waxman:

"''Show me one case'' down through the centuries where circumstances similar to those at Guantanamo Bay entitled an alien to challenge his detention in civilian courts, said Scalia."

The lack of precedence is because we have never jailed civilians on such a scale as at present.

They are trapped in a legal twilight zone, and the Administration seeks to retreat away from principles of "rule of Law" to keep the "enemy" in perpetual limbo.

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