Boumediene/Al-Odah v. Bush

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Authorship: This page is maintained primarily by Lyle Denniston

[edit] Briefs and Documents

Docket: 06-1195

Argument Transcript

In addition, Mayer Brown has an extremely helpful website with links to all of the merits briefs here.

Cert. stage briefs are linked to in this SCOTUSblog post.

[edit] Pre-Argument Articles

[edit] Grant write-up

Lyle Denniston originally wrote this post for SCOTUSblog.

[edit] Argument Preview

Boumediene v. Bush and Al Odah v. U.S. bring the legal controversy over President Bush’s fight against terrorism back to the Supreme Court, for the fourth time in the past three years. The consolidated cases are outwardly simple: they are tests of whether individuals captured abroad and held at the U.S. military prison at Guantanamo Bay, Cuba, have any constitutional rights, and, if so, does that include a right to challenge their detention in regular (civilian) U.S. courts. Those two questions, though, encompass a range of difficult constitutional and historical issues.

[edit] Background

For America, war always brings constitutional controversy. Whether it be all-out warfare with total mobilization, the Civil War, a regional “war” like those in Korea or Vietnam, or something in between like the use of the U.S. military in Afghanistan and elsewhere against terrorism, armed hostilities produce profound questions over who may commit the U.S. to war, how the war is to be managed, and what happens to individual rights during wartime. Since President Bush in the early afternoon of Sunday, Oct. 7, 2001, disclosed that he had ordered military strikes against “the Taliban regime in Afghanistan,” in direct response to the terrorist attacks on the U.S. on Sept. 11, 2001, the legal questions have been building. Somewhat curiously, they are being worked out primarily in the context of how the U.S. treats those individuals who have been rounded up around the globe as terrorism suspects. That is curious because the Bush Administration adopted a policy on handling of detainees specifically to avoid fighting legal battles in U.S. courts over the “war on terrorism.” That is why an offshore location, Guantanamo Bay, was chosen as the place to hold detainees; Administration lawyers thought it was beyond the reach of the civilian courts.

But, not long after the first dozen detainees arrived at Guantanamo on Jan. 11, 2002, the court cases began. Since then, those cases have brought some answers to core questions about presidential authority and individual rights. But more questions remain.

Three times, beginning on June 28, 2004, the Supreme Court has supplied some of those answers. The lawsuits over detainees’ rights – and, with them, the outlines of basic constitutional controversy over war powers – may still be a significant distance short of final resolution. But the Court will offer some further answers in the current Term when it decides the consolidated cases of Boumediene v. Bush and Al Odah v. U.S. – cases that it originally refused, on April 2, to hear, before changing its mind on June 29.

While the two cases are weighty with significance, they also are limited in significant ways: they involve foreign nationals only, not U.S. citizens; they involve individuals taken captive overseas, not in the U.S.; they involve persons held outside mainland U.S., not in custody anywhere inside this country; they involve individuals none of whom faces any criminal charges, in civilian or military courts. Although the decision in Boumediene/Al Odah may well have an effect later on U.S. citizens, permanent resident aliens, individuals held elsewhere than at Guantanamo, and prisoners facing trial before military commissions, their fate is not directly at issue now. The Court, for example, has expressly declined – so far – to rule on challenges by military commission defendants Salim Ahmed Hamdan and Omar Ahmed Khadr.

The granted cases involve 37 Guantanamo detainees. The individuals who give their names to the cases are Lakhdar Boumediene, a native of Algeria captured in Bosnia in October 2001, and Khalid Abdullah Fahad Al Odah, a Kuwaiti national captured in Afghanistan in late 2001. Those two are among hundreds of detainees who have filed challenges in U.S. federal courts in Washington to their detention, seeking writs of habeas corpus to force the government to justify their captivity and hoping to achieve their release after more than five years in military prison. Although Guantanamo at one point held more than 700 prisoners (and a total of nearly 900 have been there at some time), the detainee population there is now down to about 305. There have been recurrent reports that the Bush Administration is studying whether to close Guantanamo altogether, but that does not appear to be imminent.

No Guantanamo detainee has ever won release in a court case because of the simple fact that not one has yet had a hearing to judge their habeas claim. Federal judges initially threw out the cases, finding no jurisdiction. But the Supreme Court found on June 28, 2004, in Rasul v. Bush and Al Odah v. U.S. (Al Odah is the same individual as in the new case), that detainees had a right under federal statutory law to file habeas challenges. The Court sent the cases back to lower courts to decide initially whether to grant any remedy.

In two District Court decisions within days of each other in January 2005, the judges reached opposite conclusions – one holding in the Boumediene case that the courts could not give detainees any remedy, the other holding in the Al Odah case that the detainees could claim a due process violation in their continued detention. The judge in the Al Odah case ruled that a system of military-only review of detainees’ status – set up by the Pentagon in July 2004 in direct response to the Supreme Court rulings in Rasul and Al Odah (the Combatant Status Review Tribunal system) -- was a violation of due process rights.

The cases went up to the D.C. Circuit Court. While those appeals were pending, Congress passed the Detainee Treatment Act of 2005, stripping the federal courts of authority to hear habeas challenges by detainees. That law was tested in the federal courts, and ultimately in the Supreme Court, resulting in the ruling by the Justices on Hamdan v. Rumsfeld on June 29, 2006, that the court-stripping provision of the DTA did not apply to already-pending detainee habeas cases. That led Congress to try again, enacting the Military Commissions Act of 2006, with a more explicit withdrawal of habeas authority in the federal courts in any detainee case.

Finally, after nearly two years of intermittent activity in the D.C. Circuit Court, that Court on Feb. 20, 2007, upheld the Military Commission Act’s court-stripping provisions, and ruled that the detainees who had no “property or presence within the United States” had no constitutional rights whatsoever. It ordered the Boumediene and Al'Odah cases dismissed. The only court process left for detainees, the Circuit Court ruled, was an appeal to the Circuit Court for limited review of the detention findings of the military Combatant Status Review Tribunals, appeal rights that were authorized by the Detainee Treatment Act of 2005.

[edit] Petitions for Certiorari

The Boumediene and Al Odah cases then were appealed to the Supreme Court in March 2007. What those appeals sought, one of the petitions said, was “a single remedy: a fair and impartial hearing before a neutral decision maker to determine whether there is a reasonable basis in the law and fact for detaining them.” In Boumediene v. Bush (06-1195), lawyers raised two questions: did Congress in the 2006 law, the MCA, validly take away federal courts’ jurisdiction over Guantanamo detainees’ habeas claims and whether the detainees’ petitions for habeas showed that they were entitled to release or, at least, to a court hearing on the legality of their detention. In Al Odah v . U.S. (06-1196), lawyers raised four questions: was the Circuit Court wrong in finding no constitutional rights and no habeas rights, was the Circuit Court wrong in finding that the habeas right had not been suspended unconstitutionally by Congress, do detainees have a due process right and rights under the Geneva Convention to their liberty, and should the MCA be read not to apply to pending habeas cases in avoid to avoid constitutional questions.

The Justice Department opposed Supreme Court review, arguing that the detainees had significant rights under the Detainee Treatment Act, and should be required to test their claims first in that process before the D.C. Circuit Court. On April 2, the Supreme Court refused to hear Boumediene and Al Odah. Two Justices said the detainees should attempt challenges under the DTA in Circuit Court, and three dissented from the denial. Within weeks, the detainees asked the Supreme Court to reconsider – a maneuver also opposed by the Justice Department. However, on June 29, the Court changed its mind, wiped out its April denial of review, granted review of both of the cases, consolidated them and ordered one hour of hearing. The hearing is scheduled for Wednesday, Dec. 5 – the only case on the calendar that day.

[edit] Merits Briefs – the Detainees

While fairly simple at their core, the arguments the detainees make in their merits briefs to buttress their claim of legal rights under the U.S. Constitution and common law could take the Court on a wide-ranging excursion into the history of the habeas writ and its essential character, a penetrating examination of the Constitution’s clause that bars suspension of the writ except in extreme cases of “rebellion or invasion,” and a critical inquiry into the substance and value of the military detention system and of the judicial review process that Congress wants substituted for habeas. The Court also might have to revisit what it wrote in the case of Rasul v. Bush in 2004, one of the first war-on-terrorism cases. (The Rasul case was about statutory habeas, but the detainees’ briefs insisted it went beyond that.) All of this may be entailed in the basic questions of whether the writ extends to Guantanamo (and perhaps potentially to other offshore sites), and whether, if it does, Congress has validly set it aside.

But, if detainees had their way, the Court might also go beyond a finding that they do have habeas rights and that it was not constitutionally suspended, and conclude, on the merits, that those rights have been violated. In short, they want the Court to conclude that there is no lawful basis for them to be detained at all.

A key to their argument about the nature of the habeas rights is that the Supreme Court has already held – as recently as 1996 and repeated in 2001 -- that the Constitution protects habeas “as it existed in 1789.” And they contended that the Supreme Court reinforced that view in its Rasul decision, saying that the statutory right to petition acknowledged in that case was “consistent with the historical reach of the writ of habeas corpus.” That assertion, of course, takes the briefs into a lengthy exploration of habeas as it existed in the 18^th Century, and before, back into English history.

Based on that broad view of the writ, the briefs contended that it definitely extends to the Guantanamo prisoners, and that Congress, therefore, did not have the authority to take it away as it undertook to do in the Military Commissions Act of 2006. Under the Suspension Clause, the writ may only be suspended temporarily, even in the direst circumstances of a threat to the U.S. homeland, the briefs noted. But MCA would wipe it out permanently for these prisoners, the briefs added.

While conceding that the Court had ruled that Congress could validly take away the habeas writ, if it provided an adequate substitute (something the Court has found on only two occasions), the briefs asserted that what Congress has offered in place of habeas would be constitutional only if it were “virtually identical” to habeas. Under habeas, there is a clear opportunity to offer evidence favorable to the prisoner and to rebut government evidence, a right to a neutral decision-maker, the availability of release as a remedy, a speedy decision, and the right to a lawyer. The Combatant Status Review Tribunal process, set up by the Pentagon, has none of these features, the briefs argued. In the course of that argument, the briefs challenged the definition of “enemy combatant" that the CSRTs use as a basis for holding prisoners indefinitely. And, if a detainee does attempt the D.C. Circuit review process to test a CSRT decision, the briefs contended, what the detainee encounters is “only a truncated and deferential survey of the faulty CSRT process and the preordained results it yielded” – and, they asserted, it is a process that could be strung out for years, in time-consuming stages. (On this point, the briefs relied upon the D.C. Circuit’s subsequent ruling, on the nature of the DTA review process, in Bismullah v. Gates, on July 20. That decision, according to the briefs, reveals the failings of the entire substitute enterprise.)

[edit] Merits Brief – the Government

The Bush Administration’s combined merits brief in the two cases sought to take advantage of the view, expressed by four of the Justices last year, that the country benefits when “democratic means” are used to resolve how to “deal with danger.” That has now been done, the government argued, through the balance that the President and Congress had struck in eliminating habeas for detainees and substituting an alternative status review system. In another major focus of the brief, the government contended that the Guantanamo detainees “enjoy more procedural protections than any other captured enemy combatants in the history of warfare.”

The Court, it contended, should allow that system to function, and should not rule that the detainees are entitled to more. The brief also included a suggestion for judicial modesty, arguing that the Court should refrain from overruling an enduring precedent from the World War II era – the 1950 decision in Johnson v. Eisentrager – and arguing that the only way to rule that the detainees now have a constitutional right is to overturn that decision. Eisentrager made clear, the brief noted, that “aliens held outside the sovereign territory of the United States” do not have rights under the U.S. Constitution. The Rasul decision did not establish a constitutional right of habeas, but only acknowledged one under federal statute.

The Administration took on the historical findings of the detainees’ briefs, arguing that, in 1789, the common law writ of habeas would not have extended beyond the U.S.’ territorial limits. The Suspension Clause, it argued, “has only domestic application.” It “does not speak to the application of the writ in the context of military operations abroad,” the government asserted. “That omission is powerful evidence that the protection afforded by the Suspension Clause does not extend to overseas detentions of aliens in the first place. It would be absurd for Congress to have the power to suspend the writ within the United States but to lack any such authority, regardless of exigency, as to military operations on foreign soil.”

In any event, the brief contended, whether the detainees can show a historical basis for their habeas claim is not decisive, because the President and Congress have succeeded in displacing any such right with a wholly adequate substitute. The CSRT and DTA review process now in place, the brief added, set up a system that provides protection beyond that available under the Geneva Convention for prisoners of war. The Supreme Court, it argued, found such a system adequate for U.S. citizens in one of its first detainee rulings in 2004.

While urging the Court to reject the detainees’ appeal, and return them to the D.C. Circuit to seek some remedy there, the government brief said that if the Court should reach the merits of the detention of these prisoners, it should find that they are lawful. Relying on Congress’ post-9/11 resolution, the brief said, the government has full authority to do what is necessary to use force against those responsible for the terrorist attacks in 2001.

[edit] Amicus Briefs

Predictably, the cases have drawn a substantial file of amicus briefs, but there is a considerable numerical imbalance: 22 briefs support the detainees, two support a separate brief in the case by detainee Omar Khadr, and four support the government. Khadr has filed a brief technically as a respondent in the case, but essentially is seeking much the same relief as other detainees – except that he is doing so as one who faces war crimes trial before a military commission. Among the amici in the case is Salim Ahmed Hamdan, who also is facing a commission trial; he urged the Court to sustain a habeas right for him even if it does not do so for the other detainees who have not been charged.

Many of the briefs supporting the detainees focus on the history of the habeas writ, but some have singled out particular issues they wanted to press. For example, the National Institute of Military Justice launched a verbal assault on the treatment of detainees at Guantanamo, and argued that 93 percent of the detainees were captured by someone other than U.S. or coalition partners when the U.S. was paying bounties for prisoners. Louise Arbour, the United Nations’ senior official for human rights, argued that an international convenant on human rights that the U.S. joined 15 years ago works in the detainees’ favor. There are retired military officers arguing that American service members captured abroad would suffer from the example of Guantanamo, and 20 former federal judges complain of possible use of torture to obtain evidence that is being used by CSRTs. A wide range of scholars of international law, constitutional law, and legal history have added their views.

Khadr, who was 15 years old at the time he was captured in Afghanistan while engaging in military combat, has drawn the support of the Juvenile Law Center claiming that military commissions have no jurisdiction over minors, and international law scholars argue that the law of nations requires special protection for children caught up in criminal proceedings.

Conservative legal advocacy organizations – such as the American Center for Law and Justice and the Criminal Justice Legal Foundation – supported the Bush Administration position unqualifiedly, arguing that habeas is not available to the detainees for a variety of legal and policy reasons. A group of retired military officers, together with advocacy groups, argued that the courts should not second-guess the joint determination of Congress and the White House on how to deal with detainees.

[edit] Analysis

The Supreme Court’s quite surprising turnabout in these cases – first denying review, then granting review about four months later – suggests strongly that the Court is ready to resolve the ultimate questions on habeas and the adequacy of the substitute provided by Congress, rather than to require the detainees to pursue their cases first in the Detainee Treatment Act process at the D.C. Circuit. A go-there-first rationale supported the initial denial of review, but something that developed after that – no one but the Justices knows what it might be – appears to have moved the Justices beyond that point. The DTA process, as subsequent developments have shown, appears to be moving at a very slow and labored pace, and is fraught with difficulty, especially for the government. The Court has been made aware of some of those perceived flaws.

One easy speculation about the grant of review is that Justice John Paul Stevens, the author of Rasul, was able to persuade Justice Anthony M. Kennedy to change his mind and to opt for review now. Stevens and Kennedy were the two who suggested in April that the detainees return to the Circuit Court for initial attempts at relief. It would have taken five votes to grant review after the initial denial, and it was already obvious that three Justices – Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter – were in favor of prompt review.

The cases are, in their detail, exceedingly challenging for the Court, and the prospect for a deep division is great – over the history of habeas, over the question of deferring to Congress and the White House, and over the adequacy of the substitute mechanisms.

[edit] Oral Argument Recap

The following is taken from the SCOTUSblog by Lyle Denniston entitled, "Commentary: Can constitutional issues be finessed?"

Back in April, when the Supreme Court initially refused to hear the Guantanamo Bay detainees’ challenges to their detention, Justice Anthony M. Kennedy was one of two members of the Court who wanted the prisoners to try first to get some legal relief from the D.C. Circuit Court. He apparently changed his mind (probably making a fifth vote to switch and hear the case), but now that the case has been heard by the Court, Justice Kennedy seems still to want to let the lower court try its hand at answering some serious constitutional questions about detainees’ rights. The problem is: the Court first has to face and answer — or find a clever way to finesse — some fundamental questions of judicial power: can it restore jurisdiction that Congress has taken away, and can it then order remedies that Congress has denied to the lower courts?

As the Court heard Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196), allowing an extra 24 minutes beyond the hour scheduled for argument, it became clear that some of the Justices were thinking beyond the core question of whether the Constitution gives detainees any rights at all, or at least a right to challenge their detention in a federal habeas court. While the Court’s more conservative members wanted to talk about that, implying that the detainees have no such rights, most of the other Justices were moving on — assuming detainees have such rights, what remedies do they get?

It was a leap that Justice Ruth Bader Ginsburg questioned very near the beginning of the argument: “The D.C. Circuit, as I understand it, ruled that there was no access to habeas — end of case.” So, she told the detainees’ lawyer, Seth P. Waxman, the Circuit Court never examined whether Congress had provided an adequate substitute for habeas. Waxman agreed, prompting Ginsburg then to jump, herself, to remedies: “So, shouldn’t we, if we agree with you, that there is authority in the D.C. Circuit, send it back to them to make that determination whether habeas being required, there is an adequate substitute?”

It turned out that this was what most interested Justice Kennedy, who may well hold the deciding fifth vote on the outcome of these cases. He would come back to it several times. But that immediately gave rise to this question: doesn’t the Supreme Court have to first reverse the D.C. Circuit, say that the lower court was wrong in saying detainees have no constitutional rights, and then — only then — suggest ways to right that error? Once Chief Justice John G. Roberts, Jr., and Justices Antonin Scalia had spent a good deal of their questions on that issue, it seemed to get submerged, and even U.S. Solicitor General Paul D. Clement found himself discussing — more expansively than the government has up to now in its arguments in the D.C. Circuit — what remedies might be fashioned. He even suggested, as the government has never before, that the Circuit Court could even order the release of a detainee from Guantanamo as an ultimate remedy.

Congress has passed two laws to give heightened emphasis to its desire that the detainees have no right to habeas. The Circuit Court upheld the latest of those two laws in its ruling in the Boumediened/Al Odah cases, and has started moving on to flesh out the details of the more limited substitute that Congress has provided. While that alternative process has all but stalled for the time being, it is all that the detainees are entitled to have, according to Congress, the Circuit Court, and the Bush Administration. But the adequacy of that process as a remedy does not even arise unless it is all that the detainees have — that is, unless habeas is gone. As Justice Ginsburg remarked at one point Wednesday: “You don’t need an adequate substitute for habeas because you have no right to habeas” under the habeas-stripping law at issue. But the argument frequently left the impression that, with perhaps a majority of the Court, habeas may not be gone, after all. How to say that did not seem to be as much a question before the Court as was the issue of whether to say it at all at this point.

This perception emerged most plainly while Clement was at the podium. Justice Stephen G. Breyer began by leading Clement into saying several times that the alternative procedure Congress has set up — military Combatant Status Review Tribunals to decide initially on detention, with some limited review of that in the D.C. Circuit — would not provide a forum for detainees to argue that no one in government had the authority to order their indefinite detention with no charges and no legal rights. “I don’t see anything in this CSRT provision that permits [a detainee] to make that argument,” Breyer said. Clement commented that he was not sure that a detainee can make that argument. He then launched into a defense of the adequacy of the alternative review process.

A bit later, Breyer raised the point again. “I’m back to the question of is this remedy that’s given in the statute sufficient” to allow arguments to be made on both sides of the long-term detention authority. He told Clement: “What you said was when I thought I produced an example of an instance they wanted to argue quite strongly and you said no, they couldn’t.”

Not long afterward, Justice Kennedy said: “Why can’t that question that Justice Breyer raised be reached by the Court of Appeals under the CSRT review hearings when it determines that constitutional adequacy of the standards or am I missing something?” Clement said he was “not so sure” and that he doubted that even a court hearing a habeas claim could reach such an issue. The Solicitor General, however, did tell Kennedy flatly that the Circuit Court in that process could rule on the constitutionality of the broad definition that the Pentagon gave to the phrase “enemy combatant” — a designation that must be made before a detainee may be held further in captivity. “Absolutely, Justice Kennedy,” he replied. “That would be available to them in the D.C. Circuit.”

Chief Justice Roberts also got into the discussion of the adequacy of the alternative review, saying “we don’t know what that’s going to look like yet because the D.C. Circuit hasn’t had an opportunity to rule on those.” Clement, of course, agreed. The Chief Justice was in essence supporting the notion that the D.C. Circuit should go forward under the existing process, even answering questions about the constitutional adequacy of that process.

Once more, Justice Ginsburg reminded everyone that the adequacy of the procedures was not before the Court, because the Circuit Court had found “there is no authority — period — for the D.C. Circuit to engage what is before us, applications for a writ of habeas corpus.”

But Justice Breyer was not finished with the remedy issue. Suppose, he suggested, that the Court “were to say that this is an unconstitutional suspension of the writ and that the remedy here written in the statute is not adequate in respect to many claims that might be made.” But, he went on, these detainees have been waiting for six years for a remedy that is supposed to be “speedy.” Breyer then asked: “Is there anything in your opinion that this Court could say by way of remedy that could get the D.C. Circuit or the others to decide this and the CSRT claims, there are 305 people, to do this quickly within a period of months rather than six more years? And if so, what?”

First, Clement said he would rather discuss what the Court might say if the government were to win than if it were to lose. “As to that opinion, the lower courts should be instructed to with due cognizance for the fact these individuals have been detained six years and this is the process provided in order to decide whether or not that continuing custody is lawful, they should expedite this to the greatest extent possible.”

But, Justice Kennedy intervened, returning to the underlying constitutional issue that was being so routinely assumed rather than discussed, said: “How can we say that when your position is we have no jurisdiction here?” And Justice David H. Souter chimed in: “If you win, we never get to these issues [of the adequacy of the remedy provided by Congress].” The Solicitor General said that the Court would “still say everything…” He did not get to finish, because Justice Kennedy commented saracastically: ” ‘Have a nice day everybody?’ ” And Souter added: “You don’t win without reversing the Court of Appeals….If we affirmed on alternative grounds…these interesting questions that you referred to will never arise.” Clement disagreed, saying the Circuit Court was already moving on to the larger constitutional questions. Souter was not persuaded: “At the end of the day, the only thing as I understand it that could possibly be adjudicated would be the question of formal adherence [by CSRTs] to procedure or not. There would never be an adjudication that ever went to the merits…of relief” because the Circuit Court had already determined it had no jurisdiction.

Finally, Clement conceded to Justice John Paul Stevens that he may have misspoken in suggesting that the D.C. Crcuit would be able to explore all of the questions of the constitutional adequacy of the CSRT process.

The detainees’ lawyer, Waxman, used his rebuttal mainly to challenge the adequacy of that process and of the Circuit Court’s review of CSRT detention rulings. Kennedy asked for elaboration about that issue, and Waxman went into a sharp critique of the Circuit Court’s assignment under the alternative. It will be reviewing a limited record before the CSRTs, and “has already said it will not hear any new evidence” and it must apply a presumption that the limited record before those tribunals was presumed to be correct. And he then related an example of what difference those limits made, citing evidence unearthed by a detainee’s lawyer that completely contradicted evidence before a CSRT about the detainee’s alleged tie to a supposed terrorist suicide bomber — who, in fact, is alive and was “never involved in terrorism” and was simply getting on with his life. “That’s evidence that would not have been allowed in…It wouldn’t have been in the CSRT.” And it would not come before the Circuit Court in its review. “That’s why it is inadequate,” he said, closing.

The Court is expected to decide the cases by early next summer.

[edit] Opinion Analysis

Lyle Denniston originally wrote the following for SCOTUSblog. The Supreme Court’s lead opinion in the Guantanamo Bay cases Thursday declares simply: “The detainees in these cases are entitled to a prompt habeas corpus hearing….The costs of delay can no longer be borne by those who are held in custody.”

But that does not mean any detainee is going to be released soon — although that ultimate remedy does have to remain available as a potential outcome. Much was decided on Thursday — particularly in terms of constitutional magnitude — but much remains open for the future. What is next, and where might the decision lead in the end? Answers, but only preliminary answers, can be suggested.

First, however, some policy and political calculations have to be gauged. The decision does leave President Bush and Congress with the power to try again (assuming they could find some common ground) to head off habeas. Even though Thursday’s decision was a constitutional ruling, the Court did not say that there can never be any substitutes for habeas review of detention. But, as a matter of political reality, a Republican President with only six months left in office and historically low popular approval ratings, and a Democratic Congress that is less and less deferential to the Executive even on war-on-terrorism issues, very likely will not be able to agree in the short time realistically available to find an alternative to habeas that has any chance of surviving a court test.

The Pentagon, too, still has some options open to it. It can scrap the existing system that decides who is to be designated as an “enemy combatant” and thus must remain confined. The Court did not strike down the so-called Combatant Status Review Tribunals; indeed, it said, they “remain intact.” But, the less such a filtering system protects a detainee’s legal rights, the more chances he has to challenge the enemy label and the detention in court, according to Thursday’s decision. Does the Pentagon have a military interest in expanding detainee’s rights up-front? Given its history with CSRTs, the answer is probably not.

The Pentagon perhaps also might ponder some changes in the system for trying detainees on war crimes charges — the so-called military commissions that are ponderously moving forward at Guantanamo. But the Court said nothing about the commission system Thursday, so the military may have no incentive to re-think a system that it has struggled to keep going amid a host of difficulties, major and minor. Still, the Court’s ruling does portend some serious challenges to the military commissions through habeas cases, even though the specific cases decided Thursday involved challenges only to detention, not to prosecution.

There is one other political calculation to take into account: the prospect that Guatanamo Bay itself may be shut down entirely as an apparatus for detention and prosecution of captives in the war on terrorism. That could change, in wholesale ways, the fate of the detainees, and Bush Administration policy. But, between now and the start of a new Presidency, the time may be too short to find an alternative to Guantanamo, at least one that the President and Congress could agree on.

Thus, leaving aside all the prospects for political change of greater or lesser moment, what is going to happen next for the detainees is going to be legal in nature. As the Court said, the captives must have a “prompt” habeas hearing. What will go on in those hearings is going to be discussed shortly by the judges of the U.S. District Court in Washington (where such hearings will be held) joined by lawyers for the detainees, and for the government (Justice Department and Pentagon, in particular). As an earlier post on this blog indicated, the judges are already planning for such discussions.

Those in on the discussions about habeas proceedings have some leeway in how to proceed, because the Court said explicitly on Thursday that its “opinion does not address the content of the law that governs” the Guantanamo detention. “That is a matter yet to be determined.”

But there is a good deal of guidance in the Court’s opinion written by Justice Anthony M. Kennedy, although some of its is a bit contradictory, or perhaps at least a bit unclear. On the one hand, for example, the Court says the detainees must have a “prompt” habeas hearing. But elsewhere, the opinion says that “federal courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least until after the [Defense] Department, acting via the CSRT, has had a chance to review his status.” The latter point, however, does not explicitly take account of the fact that all of the detainees now at Guantanamo (270 or so remain) have had at least one CSRT review, and a few have had more than one. The Pentagon, though, may want to have some additional “do-overs,” especially if it fears that the existing basis for a specific prisoner’s detention is vulnerable to a strong habeas challenge, so the Court may be anticipating some time for those to occur. And it obviously did have in mind future captives, not yet at Guantanamo.

It is clear from the opinion that the detainees who already have had their CSRT reviews may proceed directly to District Court, with a new or reopened habeas challenge. (Some 200 habeas petitions are already waiting there.) The Court said that the detainees in that category need not pursue their challenges to CSRT decisions in the D.C. Circuit Court under the Detainee Treatment Act (Congress’ alternative to habeas). To require those who have been held for six years to complete that process ahead of habeas “would be to require additional months, if not years, of delay,” the Court said.

In fact, in the two cases that the Court explicitly decided Thursday (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196), the Court ordered the D.C. Circuit to send them back to District Courts for the habeas review now required.

Still, the Court said it was not disturbing the DTA process that Congress assigned to the D.C. Circuit, so it will be up to that tribunal, in cases other than those in which detainees have been held for years, to decide how to proceed, if at all, now. Lawyers in some of the DTA cases pending at the Circuit Court are already under orders to advise that Court on what they think should happen following the Supreme Court decision. One of the cases in which such an updating order has been issued involves Salim Ahmed Hamdan, who has seeking to use his DTA not only to challenge his detention, but his war crimes prosecution before a military commission. The Circuit Court already has under advisement an appeal testing the legal rights of another Guantanamo detainee, Omar Ahmed Khadr.

But, returning to the habeas cases that are expected to resume in District Court, what rights will the captives have? Or, at least, what did Thursday’s decision seem to say about those rights, even while insisting it was not providing a final checklist of rights?

Two somewhat general principles were stated: (1) that, if the detention decision comes in a proceeding in which the captive’s legal rights are limited so that the process was not “thorough,” the habeas review must be more expansive and comprehensive; and (2) that the judges handling habeas cases “must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release.”

Going beyond those generalities, the Court made comments, in critiquing the CSRT and DTA proceedings, that suggest what habeas rights a detainee probably has to have before a court can uphold a decision that he must remain in detention or before a court would allow him to be tried for war crimes (since a CSRT or other designation of enemy status is necessary for a war crimes trial):

1. The habeas hearing must be prompt — at least for a detainee who has been held for several years (the time factor is uncertain).

2. The habeas review must be sufficiently comprehensive to significantly reduce the risk of error in an enemy designation, and the court must have the authority to correct errors in that designation.

3. The detainee must have a meaningful right to rebut the Pentagon’s evidence that seeks to support an enemy label, including some right to bring in additional evidence challenging the enemy status finding.

4. The detainee must have the assistance of a lawyer.

5. The detainee’s habeas case may demand an answer to the question of whether the President has the authority to order a captive held indefinitely — in other words, to challenge the basic authority of the Executive to have a prolonged detention policy for war-on-terrorism captives.

6. Release of custody, at least a “conditional” release (unspecified conditions), must remain one of the remedy options. It would not be enough, constitutionally, for a court merely to order a new CSRT proceeding as the only possible remedy.

Potentially, the first five of these rights may exist in a habeas case brought by a detainee who is facing a war crimes prosecution before a military commission. That is because a habeas challenge in that context would be, in part, a challenge to the enemy designation that must be made before a detainee may be charged with war crimes. But a habeas challenge in the war crimes context might also involve other constitutional claims of defects in the military prosecution itself — such as a denial of access to classified evidence against the accused. It is unclear, though, whether a habeas court would have the authority to examine those challenges in a pre-trial habeas case — or would have to await a final conviction. There might be other ways, different from habeas, for challenging the constitutionality of the commission process. The Court said nothing Thursday about such challenges. Those, too, are for the future.

There is no way, at this point, to predict how many — if any — detainees now at Guantanamo may win their freedom as a result of the ruling. District Court judges already have been divided in their views of detainees’ rights, and that conflict is likely to continue.

An entirely separate question arises over whether the decision will provide habeas access for any detainees held elsewhere than at Guantanamo Bay — for example, at the U.S. military’s detention facility at Bagram air base in Afghanistan. Detainees there now have attempts at habeas pending in the District Courts in Washington. Their attorneys surely will attempt to take advantage of the ruling, and of the separate decision Thursday (in Munaf v. Geren, 06-1666), finding that habeas rights do apply to those held by the U.S. military in Iraq. The Munaf decision involved only American citizens so held, but lawyers predictably would contend that should apply to foreign nationals so held, too — on the same ratrionale that the Guantanamo decision recognized habeas rights for foreign nationals at the Cuba base.</div>

[edit] Links and further information

A helpful case chronology and glossary, by David Remes of Covington & Burling, is here (updated to 11/29/07).

[edit] Oral Argument Audio

The audio of the oral argument can be found here (via Oyez).

[edit] Press

Opinion Related

• NYT: Justices, 5-4, Back Detainee Appeals for Guantánamo
• NYT: Detention Camp Remains, but Not Its Rationale
• NYT: McCain and Obama Split on Justices Guantanamo Ruling
• LAT: Basis for Offshore Prison is Undercut
• LAT: Guantanamo Detainees Have Constitutional Rights, Supreme Court Says
• NPR: High Court Deals Setback to Bush Guantanamo Plans
• NPR: The End of Guantanamo as We Know It
• Legal Times: Supreme Court Says Guantanamo Detainees Have Right to Challenge Detention
• USAT: Ruling Maintains High Court's Steak on Gitmo Cases
• USAT: Ruling Lays Path from Guantanamo to US Courts

• In the Washington Post, Robert Barnes provides this article detailing the Court’s decision.
• Columnist Dan Froomkin offers this opinion piece.
• The Wall Street Journal’s coverage includes this article by Jess Bravin,
• as well as a brief “Breaking News” post by Dan Slater on the Law Blog.
• David Stout’s coverage for the New York Times is available here,
• and David Savage has this article in the LA Times.

• Mark Sherman’s article for the AP is available here,
• and an AP article describing the “scramble” among District Court judges caused by the decision can be accessed here.
• Also, the AP’s Deb Riechmann contributes this article outlining President Bush’s response to the decision.

• James Vicini of Reuters provides this report,
• Greg Stohr offers this article for Bloomberg,
• and Bill Mears’ piece for CNN.com can be found here.

Argument Recaps

• A dispatch from Dahlia Lithwick of Slate is here.
• A report from the AP’s Mark Sherman can be found here.
• The latest report from Reuters’ Randall Mikkelsen can be found here.
• A report from Bloomberg’s Greg Stohr can be found here.
• A report from the Los Angeles Times’ David Savage can be found here.
• A report from the Washington Post’s Robert Barnes can be found here.
• A report from USA Today’s Joan Biskupic can be found here.
• A report from The Wall Street Journal’s Jess Bravin can be found here.
• A report from the New York Times’ Linda Greenhouse can be found here.
• A report from the Chicago Tribune’s James Oliphant can be found here.
• An audio report from Slate’s Dahlia Lithwick on NPR can be found here.
• A report from Legal Times’ Tony Mauro can be found here.
• A report from NPR’s Nina Totenberg can be found here.

Pre-Argument

• Slate: Don't Know Much About History (by Emily Bazelon) (Dec. 4, 2007)
• USA Today: Court to Release Detainee Case Recordings Early (Nov. 27, 2007)
• USA Today: Court to Decide Detainees' Rights (Nov. 27, 2007)
• New York Times: Guantanamo Detainees Enjoy Historic Protections, Administration Says (Oct. 11, 2007)
• NY Times: Legal Battle Resuming on Guantanamo Detainees (Sept. 2, 2007)
• NY Times: In Shift, Justices Agree to Review Detainees' Case (June 30, 2007)
• NY Times: Risking Testy Justices and Faulty Justice (March 5, 2007)

[edit] From the Blogosphere

Opinion Related The Volokh Conspiracy offers extensive analysis and commentary from Orin Kerr, Ilya Somin, and Jonathan Adler. Meanwhile, David Barron provides these comments in Slate’s Convictions Blog, and Tony Mauro describes the dramatic day at the Court on The BLT.

Podcast

• Federalist Society "SCOTUScast" (Dec. 7)

Post-Argument

• Legalities: The Evil at GTMO (Dec. 5, 2007)

Argument Analysis

• Bench Conference: At High Court They Talk; At Gitmo They Wait (Dec. 5, 2007)
• Orin Kerr’s post on the Volokh Conspiracy can be found here.
• Marty Lederman’s post on Balkinization can be found here.
• Roger Alford’s post on Opinio Juris can be found here.
• ACLU senior staff attorney Cecilia Wang's post on the American Constitution Society Blog can be found here.

Pre-Argument

• Legal Times: Heard But Not Seen (Nov. 26, 2007)
• ACS Issue Brief: "Guantanamo is Here: The Military Commissions Act and Noncitizen Vulnerability" (Nov. 30, 2007)

[edit] SCOTUSblog

• Debate Over Boumediene's Meaning
• Judges to Meet on Detainee Plans
• US to 12 Judges
• Victory for Detainee in First Case
• Update: Court Puts Boumediene in Effect
• Boumediene and a Challenge to War Crimes Trials
• A Move to Apply Boumediene
• Boumediene Guest Commentary: Jonathan Hafetz of the Brennan Center
• Follow-ups to Boumediene begin
• Boumediene Guest Commentary: Richard Samp of WLF
• Preliminary Reactions to Boumediene
• Court Gives Detainees Habeas Rights
• US: Detainee Habeas Cases Would Be Slow
• Commentary: Can Constitutional Issues Be Finessed?
• Boumediene's Continuing Fallout
• Government: Detainees Outside Constitution
• Boumediene/Al-Odah Briefs
• Limit on Boumediene Orders' Impact
• Boumediene Orders' Impact Spreads
• Fallout from Boumediene Order Begins
• Questions Presented in the Detainee Cases
• Early Action on Detainees
• Final Push for Rehearing for Detainees
• Detainee Ruling Put into Effect by Circuit Court
• Government Urges Swift Rejection in Detainee Cases
• Primer on Detainees Status Pt. II
• Primer on detainees Status Now Pt. I
• Detainees Seek Rehearing
• Detainees Ask Roberts for Temporary Aid
• What Now in the GTMO cases?
• Court Denies Detainees' Habeas Cases
• Today's Orders and Opinions
• Commentary: Some Scenarios on Detainee Cases
• Detainees See Flaws in DTA Process
• Government: Don't Rush on Detainee Cases
• Court Takes No New Cases
• Detainees Seek May 7 Hearing, Raise Merits Issues
• Round-Up on Habeas-Stripping at GTMO
• Circuit Court Orders End to Detainee Cases
• Detainees Resist Limits on Court Review