Boumediene v. Bush: Guantánamo and justice

Peter Weiss
19 June 2008

The Supreme Court of the United States ruled by a 5-4 majority on 12 June 2008 in favour of a case brought on behalf of detainees held at Guantánamo, whose effect is to declare that those incarcerated in the military prison-camp there have full rights of habeas corpus under the US constitution. During his visit to Rome on 12 June as part of his week-long European tour, President Bush added to the list of his gaffes by informing a local journalist that he was not particularly upset about the decision because, after all, the two lower courts that had dealt with the Boumediene v. Bush case had agreed with him. Since his return to the White House, the president's response has become more vehement if no more comprehending.

Indeed, Bush's series of remarks testifies both to his peculiar view of the role of the Supreme Court in American life and to the fact that, by and large, US courts have hesitated to disagree with the commander-in-chief in times of war (the "steel seizure" case, in which the Supreme Court affirmed a lower-court opinion enjoining President Truman from seizing the country's steel mills during the Korean war, is a notable exception).

Peter Weiss is a vice-president of the Center for Constitutional Rights which has led and coordinated Guantánamo litigation for several years.

What was the disagreement between the president and the Supreme Court in Boumediene? Basically, it was over the president's opinion, which owed a great deal to that of vice-president Dick Cheney and Cheney's chief-of-staff David Addington, that the primary duty of the executive branch is to defend the national security of the state at whatever cost. That this opinion may be sincerely held is beside the point; that it partakes more of autocracy than of democracy is beyond doubt. In this it represents a considerable departure from the thinking of America's "founding fathers", but comes close in some ways to that of Carl Schmitt, the influential German jurist who furnished the philosophical basis for the Nazi regime.

Boumediene is, in effect, the terminus - for the time being - of a long Bushian trajectory of "if at first you don't succeed, try, try again". If Bush, Cheney and former defence secretary Donald Rumsfeld had had their way, the detainees at Guantánamo would not be entitled to the protection of the Geneva conventions, nor of habeas corpus or the prohibition of torture (known in official documents variously as "aggressive technique", "harsh method" or "abuse"). But every time the constitution or international law were thus shunted aside, the courts or Congress brought them back. Not that Congress's role has been beyond reproach. It was, after all, the House of Representatives and the Senate which approved the Military Commissions Act, including its habeas-stripping provision which the Supreme Court in Boumedienne declared unconstitutional.

The historical dimension

Justice Anthony M Kennedy, the new "swing man" on the Supreme Court since Justice Sandra Day O'Connor's departure, did himself proud in writing the 5-4 majority opinion. Many of its pages are devoted to a scholarly examination of the history of habeas corpus, in the United Kingdom as well the United States. Kennedy's lengthy treatment contains some surprising nuggets: for instance, that while habeas corpus originated in Magna Carta in 1215 as a restraint on the king, by 1600 it had become an instrument for the king to enforce his power - i.e. to protect his subjects from unlawful detention in the courts of the realm (though perhaps this is not so surprising, for in the US habeas long been used as a tool for federal courts to enforce the "great writ" against state courts).

Most of Justice Kennedy's historical analysis, however, is devoted to whether habeas can be invoked by persons detained by the United States beyond the country's geographic boundaries. This was made necessary by the fact that the government, in its briefs and / or argument, was still flogging the dying horse of "Guantánamo is Cuba". In acknowledging the expertise of legal historians in their brief amici curiae (friends of the court) - a peculiarly American institution, rarely as effective as in this case - the court examines a series of British and American cases dealing with the application of habeas corpus to enemy combatants detained in facilities geographically similar to Guantánamo, only to arrive at the conclusion that "diligent search by all parties reveals no certain conclusion". Then, in a pragmatic leap which drove the four dissenters to distraction, the court decided that the question had to be resolved in functional rather than purely formalistic terms.

Also in openDemocracy on the legal and political issues surrounding the detainees at Guantánamo:

David Rose, "Guantánamo: America's war on human rights" (23 September 2004),

Clive Stafford Smith, "Torture: an idea for our time" (11 August 2005),

Brandt Goldstein, "Guantánamo: land without law" (21 September 2005),

Harold Hongju Koh, "Captured by Guantánamo" (26 September 2005),

Isabel Hilton, "Guantánamo: the United States's torture" (18 November 2005),

Clive Stafford Smith, "Guantánamo: the inside story" (23 November 2005) - an interview with Isabel Hilton,

Jane Kinninmont, "Guantánamo and back: an interview with Moazzam Begg" (6 March 2006),

Aziz Huq, "America's torture policy: past and future" (18 June 2007).

The specific question before the court was whether the Court of Appeals in Washington was correct in deciding that the "suspension clause" in the constitution - which permits the writ to be suspended "when in cases of rebellion or invasion the public safety may require it" - was not available to the Guantánamo detainees. The Supreme Court's answer, in essence, was: "The Suspension Clause lives, even in Guantánamo, therefore those detained there have full access to habeas corpus." This functional conclusion was based on three factors:

* The unfairness of the procedure by which the petitioners' status as "enemy combatants" had been determined

* The exclusive jurisdiction exercised by the United States over Guantánamo for more than a century

* A finding that granting habeas to the petitioners would not unduly interfere with the military's mission in Guantánamo. (The formalistic view of Justices Roberts, Scalia and the other two dissenters was based simply on the fact that in 1903 the United States had ceded sovereignty over Guantánamo to Cuba).

In the event, the case was remanded to the Court of Appeals with instructions that it remand it to the District Court, where this litigation began, "for proceedings in accordance with this opinion." This means that each of the approximately 200 detainees whose petitions are currently pending will have a chance to prove that he is not an enemy combatant. He will be able to do so subject to the rules governing the procedure applicable to any case in a federal court, rather than the highly restrictive rules governing proceedings in the Combatant Status Review Tribunals and their review under the Detainee Treatment Act, all of which the Supreme Court found to be an inadequate substitute for habeas corpus.

The constitutional vindication

It is important to note that the Supreme Court went out of its way to caution that its holding was restricted to the particular facts of this case. It does not, therefore, necessarily clothe every unfortunate victim of the CIA or the US military, anywhere in the world, in the mantle of the US constitution. But three aspects of the Boumediene opinion bode well for the future - at least so long as the majority which decided it, or a like-minded one, remains on the court (which itself depends on the outcome of the presidential election: for Barack Obama has embraced the opinion, while John McCain has severely criticised it):

* It is clear that the unconscionable length of their detention - six years for many of the petitioners - played a role in the court's "functional" decision.

* It is encouraging that Justice Kennedy for the majority noted that, as far back as 1922, "the Court took for granted that even in unincorporated Territories the Government of the United States was bound to provide to noncitizen inhabitants guaranties of certain fundamental personal rights declared in the Constitution."

* It speaks well for the court that it reminded the president and the Congress that "liberty and security can be reconciled" and that to hold that they may "switch the Constitution on or off at will would lead to a regime in which they, not this Court, say ‘what the law is'".

The last point recalls the seminal case of Marbury v. Madison (1803), in which the Supreme Court established its authority to declare laws unconstitutional. The decision in Boumediene v. Bush upholds this noble and essential principle.


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