Boumediene: What's in it for the Rest of Us?
The Supreme Court’s decision in Boumediene is a great victory for the Guantanamo detainees and a statement about the limits of executive power, even during the “War on Terror.” But there are only 270 detainees on Guantanamo, and there are 2.3 million incarcerated people in the United States (the highest number of any country). These prisoners are convicted in criminal justice systems in which the quality of appointed counsel varies widely and racial disparities are common.
Does Boumediene hold any cross-over significance for other prisoners seeking federal habeas relief in an area of the law complicated by both judge-made doctrines and the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)? While the Boumediene Court emphasized the special dangers of “executive detention orders,” I offer three general observations regarding potential domestic applications of the opinion.
First, and most obviously, the Boumediene opinion contains language reaffirming the central importance of the availability of federal habeas corpus. The Court described the “privilege of habeas corpus” as “a right of first importance,” “one of the few safeguards of liberty specified in [the] Constitution.” It wrote that the Framers considered the writ “a vital instrument” to “secure . . . freedom from unlawful restraint” and “an essential mechanism in the separation-of-powers scheme.” And it said that “[t]he test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.” The Court even cites the famous passage from Frank v. Mangum about the “Great Writ” cutting through “all forms” to get to the “very tissue of the structure.” Such aspirational language appears less frequently in state prisoners’ federal habeas cases, tempered as they often are by state-federal comity concerns.
Second, the Boumediene Court examined the two circumstances in which it previously had approved an “adequate and effective substitute for federal habeas” — statutory postconviction proceedings for federal and District of Columbia prisoners. It noted that a critical factor in its approval of those schemes was the existence of a “saving clause” — a safety valve provision permitting federal habeas review if the alternative, statutory process “proved inadequate or ineffective.” Advocates for these two categories of prisoners would do well to remember the existence of these “saving clause” provisions —a potential avenue of litigation all too easily forgotten.
Third, and perhaps most importantly, the Supreme Court reaffirmed that “the necessary scope of habeas review in part depends upon the rigor of any earlier proceedings.” For example, the Court explained, final judgments of state courts of record are due deference largely because they presumably incorporate more due process protections and provide “fair, adversary proceeding[s].” It cited nineteenth-century cases providing habeas relief when exculpatory evidence came to light that “was either unknown or previously unavailable to the prisoner.” The Court noted that federal habeas petitioners “long have had the means to supplement the record on review.”
This language certainly will be cited by state prisoners seeking to present new evidence in federal habeas proceedings (e.g., when the State has suppressed Brady evidence). It also might be cited in support of requests for federal habeas hearings when State proceedings lacked integrity in other ways — for example when court-appointed counsel was woefully under-funded or inadequate. This is a technical area of the law governed by AEDPA (and understood best by Hertz & Liebman), but suffice it to say that the Boumediene language could be invoked to bolster petitioners’ claims in future federal habeas litigation.
Five of the Boumediene Justices have reaffirmed the “centrality” of federal habeas to our constitutional system: it’s a good outcome for the Guantanamo detainees and for all who value civil liberties, and it may yet benefit others held in violation of the Constitution.