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From Military Commissions to the War on Terror

What Boumediene Means

by JOANNE MARINER

The Supreme Court ruling in Boumediene v. Bush was a nail in Guantanamo’s coffin. For the third time in four years, the Supreme Court sent a strong message that it disagrees with the Bush Administration’s detainee policies.

The Court’s 70-page opinion, written by Justice Anthony Kennedy, holds that prisoners in US custody at Guantanamo have the right to challenge their detention via a fair process in federal court. Specifically, the decision says that the Military Commissions Act of 2006, which stripped the detainees of their right of access to the courts, represents an unconstitutional suspension of the writ of habeas corpus. The ruling overturned a lower court decision that found that the 2006 law was constitutional.

Like the Court’s previous Guantanamo decisions, the ruling is a victory for individual rights. But viewed as a whole, along with the laws and executive orders that they address, the decisions also provide an interesting case study in the checks and balances, highlighting the complex power relationships among, and decision-making processes of, the three branches of government.
The ruling directly answers several pending questions, and contains clear implications for others, but there are still other relevant and important questions that it leaves for the lower courts to decide.
When reading and thinking about Boumediene, here are a few questions worth considering:

* Will the US government have to close the detention facility at Guantanamo? Or if it does not shut down the facility, does the ruling at least mean that many prisoners currently held at Guantanamo will have to be released?

* What kind of procedures are constitutionally required during habeas corpus review of a detainee’s status as an “enemy combatant,” and what kind of deference (if any), should a federal court give the military’s previous status determination?

* What are the ruling’s implications for the ongoing military commission proceedings at Guantanamo?

* Will detainees in US custody in Iraq and Afghanistan, and in secret CIA custody overseas have a right of access to US federal courts?’

* What are the ruling’s implications for possible preventive detention legislation (to allow the continued detention of suspected terrorists without charge, but under a “future dangerousness” rationale as opposed to an “enemy combatant” rationale)?

* What does the Supreme Court think of the so-called Global War on Terror (GWOT)?

I’ll briefly examine some of these questions below.

Guantanamo’s Future

The Boumediene ruling does not directly require the government to release the prisoners at Guantánamo, or even to transfer them elsewhere. In fact, there’s language in Justice Kennedy’s opinion that could be understood as legitimating the long-term detention of enemy combatants as part of the so-called war on terror, as long as the government provides a fair process for such persons to challenge their detention.

Yet, importantly, by saying that Guantanamo is no longer a law-free zone, the ruling strips Guantanamo of its main reason to exist. The reason the administration chose to send detainees to Guantanamo in 2002 was so that it could hold them without lawyers and access to the courts. (See, for example, the memorandum from Patrick F. Philbin and John Yoo of the Office of Legal Counsel of the Department of Justice, dated December 28, 2001, which Justice Antonin Scalia cites in his dissent.)

With the Court’s ruling in Boumediene, detention at Guantanamo is, in terms of detainees’ legal rights, functionally equivalent to detention on US soil. The only remaining incentives that the administration has for keeping people there, as opposed to moving them to some prison in the US, are that the cells are available (having cost millions of dollars to build), and there are no neighbors or local communities to complain. (While the Cuban government is not happy about the detentions at Guantanamo, the US government has never taken its concerns into account.)

Whether the Boumediene ruling will result in large numbers of detainees being released from Guantanamo depends on whether the administration actually has evidence to justify these detentions, and whether its definition of enemy combatant is found to be constitutionally sound. The ruling will no doubt lead to some releases, but without access to more information it is difficult to say how many.

Due Process Requirements

In holding that the procedural protections presently afforded detainees during status review proceedings are not an adequate and effective substitute for habeas corpus, the Court did not explain exactly what a procedurally sound review process would look like, but it did give some indication of its views on this important issue.

A key issue that the Court emphasized was the need for detainees to be able to present relevant exculpatory evidence that was not made part of the record of earlier proceedings. It also stated that the reviewing court would have to have “some authority to assess the sufficiency of the Government’s evidence against the detainee.”

The Court also emphasized, however, that habeas corpus proceedings “need not resemble a criminal trial”—that, in other words, their procedural protections could fall short of what is required to protect the rights of criminal defendants. A crucial question, on this point, is whether secret evidence (which is not permitted in criminal proceedings) might be used to justify a person’s detention, and might remain hidden from the detainee even during habeas review.

Although the Court acknowledged that the use of classified evidence is an obstacle to the detainee’s ability to rebut the factual basis for his detention, it did not indicate that reliance on such evidence would, in the end, be deemed objectionable. Indeed, if anything, it suggested the opposite: Citing the 1953 case that formally recognized the state secrets privilege, the Court emphasized that “the Government has a legitimate interest in protecting sources and methods of intelligence gathering.”

Military Commissions

The Supreme Court’s opinion in Boumediene never specifically mentions the ongoing military commission proceedings at Guantanamo, by which 19 defendants are currently facing charges. The ruling does, however, have important implications for the viability of the commissions process.

First, and most basically, military commissions only have jurisdiction over unlawful enemy combatants, and the Court ruled that detainees can challenge their status as enemy combatants in federal court. At a minimum, therefore, any detainee whom the federal courts find not to be an enemy combatant will not be able to be tried by a commission.

Equally crucially, the court held that detainees at Guantanamo enjoy constitutional protections, a claim that both the administration and military commission judges have rejected. (Indeed, last year the judge in the Omar Khadr case issued an order explicitly prohibiting the defense and prosecution from making constitutional arguments with regard to whether military commissions had jurisdiction over the case.)

While the Court did not address whether the detainees would enjoy the full range of constitutional protections, its ruling did open the door to the assertion of constitutional claims. It will strengthen arguments made by defendants in military commission proceedings regarding, for example, the ex post facto nature of some of the charges against them, and regarding the procedural shortcomings of the military commissions process.

And the War on Terror?

In contrast to Justice O’Connor’s cautious 2004 opinion in Hamdi v. Rumsfeld (which involved a plaintiff who was captured on a traditional battlefield in Afghanistan, and which repeatedly emphasizes the “narrow circumstances” at issue), Justice Kennedy’s opinion in Boumediene seems willing to adopt the administration’s notion of a War on Terror (or, more precisely, a global conflict between the United States and Al Qaeda).

Unlike Hamdi, the lead Bosnian-Algerian plaintiffs in Boumediene were found in a decidedly non-war-time situation: they were arrested in Bosnia by Bosnian police, and later handed over to the US. Yet the Court seems to accept, at least as a prima facie matter, that they might still be considered combatants. It also makes a couple of references to the military conflict at issue in the case, at one point suggesting that it began on September 11, 2001.

On this question, it is instructive to read Justice Scalia’s amazingly vociferous dissent. Scalia—who, in this 5-4 ruling, is only a vote away from being in the majority—appears to date America’s “war with radical Islamists” back to 1983. (As he describes it, “The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon …”) While Justice Thomas, in the dissent he penned in Hamdan v. Rumsfeld, dated the war on terror back to 1996 (which coincides with the administration’s view, judging from military commission charges that have been brought), 1983 is a new record.

Justice Scalia’s broad reference to radical Islamists, rather than Al Qaeda specifically, is also no accident, given that the 1983 attack on the Marine barracks in Lebanon is generally attributed to Hezbollah.

What is important about the Court’s opinion, at any rate—and which makes the most meaningful contrast with Scalia’s views—is that the Court is not so mesmerized by the idea of war that it is willing to throw due process out the window. In this way, the Court’s opinion is reminiscent of the 2006 ruling by the Israeli Supreme Court in the targeted killing case.

In both cases, the courts have tried to emphasize that even wars have rules.

JOANNE MARINER is a human rights lawyer.