Boumediene v. Bush: Avoiding a Pyrrhic Victory
ACSBlog is on hiatus until January 2. Please enjoy this Guest Blog post from earlier this year.
by Cecillia Wang, senior staff attorney with the ACLU Immigrant's Rights Project
Visitors to the U.S. Naval Base at Guantanamo Bay always seem to be deeply affected by the journey. Many have mentioned the dissonance of American fast food joints on the island of Cuba and the palpable despair of the prisoners kept there by the United States government. For those of us who have not seen Guantanamo first-hand, the images in the media are equally searing. In recent years, we’ve been seen photos of men in orange jumpsuits and blacked-out goggles, kneeling in cages, heads bowed, stripped of all identifying features and made to look other than human.
Before that, in the 1990s, there were the photos of small Haitian children huddled behind the barbed wire at Guantanamo, where they and other refugees were incarcerated after being plucked out of the sea by the U.S. Coast Guard. The United States government has long turned to Guantanamo when it wants to avoid compliance with the Constitution and other laws.
Tomorrow, Guantanamo will once again be in the spotlight, when the Supreme Court hears argument in the consolidated cases of Boumediene v. Bush and Al Odah v. United States. Judging from the three sets of petitioners’ briefs, the government’s brief, and about 26 amicus briefs, the world will be watching.
One side believes that the Executive Branch must be able to detain -- without judicial interference -- to save America from terrorism. The other side believes that the Administration’s detention policies will destroy the America's constitutional fabric. Everyone seems to agree on one thing: The future of the nation is at stake.
The issues in Boumediene are intellectually fascinating for lawyers, though they might cause a layperson’s eyes to glaze over. Did Congress intend to strip the courts of habeas jurisdiction over pending cases through section 7 of the Military Commissions Act? If so, does section 7 violate the Suspension Clause? Would the Guantanamo detainees have had a habeas remedy under the English common law as it stood in 1789? Does the Suspension Clause protect only the scope of habeas as it stood in 1789, or will the Court take into account developments in U.S. habeas jurisprudence? Is the government’s Detainee Treatment Act procedure an adequate substitute for habeas review? Can a detainee rely upon a “non-self-executing” treaty through habeas corpus, notwithstanding section 5 of the Military Commissions Act?
If you believe in the rule of law, if you believe that the Founders would have been shocked by executive detentions of the sort being carried out today at Guantanamo, if you believe in the wisdom of the laws of war that the United States and other nations developed in the aftermath of World War II, then the answers to those questions should be clear. And the petitioners in Boumediene should win.
But there is a scenario in which the petitioners could win, but the Constitution and the rule of law would still lose.
In the decision on review in Boumediene, the D.C. Circuit made an ominous categorical statement about whether the Constitution applies “extraterritorially”: “[T]he Constitution does not confer rights on aliens without property or presence within the United States.” The parties in Boumediene and amici (including the ACLU) have explained in their briefs why that statement was inconsistent with precedent. Among other things, as the petitioners point out, the D.C. Circuit defied the Supreme Court’s 2004 decision in Rasul v. Bush. There, the Court concluded that the habeas statute, 28 U.S.C. § 2241, conferred jurisdiction over petitions filed by Guantanamo detainees, rejecting the argument by the government that a presumption against extraterritorial application of U.S. statutes should apply. In doing so, the Court pointed out that the United States exercises “complete jurisdiction and control” over the naval base at Guantanamo and may continue to do so permanently if it chooses. The Court also stated that habeas corpus jurisdiction over the Guantanamo detainees’ claims was consistent with the historical reach of the common law writ, which permitted persons who were not subjects of the Crown to file habeas petitions if they were in dominions under Crown’s control.
Indeed, as the petitioners and many amici have explained, the common law writ in 1789 would have extended to persons in the Guantanamo detainees’ shoes. But if the Court rules in the Boumediene petitioners’ favor on narrow grounds limited to the precise facts of Guantanamo, the most pernicious effects of the D.C. Circuit’s error will go unaddressed. What if U.S. officials engage in horrific abuses in places other than Guantanamo? This is no idle speculation, given what we know about “extraordinary renditions” and CIA black sites, and in light of rumors of the closing of the detention center at Guantanamo. Moreover, a narrow ruling in Boumediene that leaves the D.C. Circuit’s blanket no-rights rule in place would have a broader impact, beyond the context of the war on terror. Can the U.S. government have carte blanche to engage in the most extreme abuses of anyone who is not a U.S. citizen, so long as those abuses don’t take place on U.S. soil?
To avoid such a calamity, the ACLU has urged the Court to make a clear statement disavowing the D.C. Circuit's categorical rule that a non-citizen has no rights unless he or she has “property or presence” in the United States. Instead, the Court should adopt a flexible test to guide the lower courts in determining whether an asserted constitutional right applies in a given circumstance. In 1957, Justice Harlan outlined just such a test, suggesting that a constitutional right should apply outside the United States when it is not “altogether impracticable and anomalous” to do so. By adopting the “impracticable and anomalous” test in Boumediene, the Court would serve both national security and the rule of law.