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June 12, 2008

BREAKING: Supreme Court Gives Guantanamo Detainees Habeas Rights

5-4 split, with the usual suspects. Kennedy wrote the majority opinion, which holds that alien unlawful combatants have constitutional habeas rights (as opposed to just a statutory habeas right) at Guantanamo Bay.

My quick glimpse says that the justices are engaged in the same "almost is good enough" analysis that they applied in Rasul in which they decided that Guantanamo Bay, though not technically U.S. territory, is close enough so that constitutional protections must apply.

The court goes on to rule on a question not considered by the lower courts, in a departure from the usual procedure, that Congress may only curtail the Guantanamo Bay detainees' constitutional habeas rights by properly using the Suspension Clause or providing an adequate substitute. It goes on to say that the Detainee Treatment Act and the Military Commissions Act did not provide adequate substitutes for habeas.

Opinions are here, I'm skimming now.

Keep in mind that though this will be trumpeted as a "crushing blow" to the Bush Administration, so too were other War on Terror cases like Hamdi and Hamdan that turned out to not be as bad as the president's detractors claimed. I don't know if that is the case here, but it is something to keep in mind.

What is the immediate impact? Off the top of my head, the Supreme Court just did both presidential candidates a favor by mooting the question of closing Guantanamo Bay. If the detainees have access to U.S. courts, there's no reason to close the base and transfer them to the mainland U.S.

More coming...

More: On my first read-through of Kennedy's opinion, I'm struck by the facial invalidation of the DTA and MCA. The lower courts didn't have an opportunity to examine the question of whether the laws provide an adequate substitute for habeas corpus which means the government has had no chance to litigate their side of the story. Instead, the court accepts the detainees argument that there is no possible way that the laws could be interpreted to provide an adequate substitute. The facial invalidation makes this an extraordinary opinion from Kennedy.

A refresher on the core issue: just which habeas rights (constitutional or statutory) are overseas, alien detainees entitled? I just pulled that together from some older material.

I have to run down to school, back in a few...

And yet more: If you're going to read just one of the opinions, skip down to Chief Justice Roberts'. I suspect that his intro will seriously resonate with Drew, who as you know has a particular dislike for courts which do more legislating than adjudicating:

The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date.

There are some good questions in the comments here and in Drew's post. I'll see if I can answer some of them next.


First, what does this mean for the military commissions that were just starting? They are completely derailed. Each and every detainee at Guantanamo Bay is filing habeas petitions in U.S. courts right now (if they haven't already done so). The question in all of those cases will be: did the U.S. government give the detainee due process. Answering that question involves several issues for which the courts have little or no guidance, which is why this decision is so very misguided.

(1) What process rights are due overseas aliens? We just don't know. Habeas corpus has traditionally been granted to citizens or invited aliens, who have fairly well defined rights. Before today's decision, aliens who were overseas and who did not have any connection to the U.S. simply did not have constitutional due process rights. Thanks to today's decision, the Guantanamo Bay detainees have more rights than aliens with no connection to the U.S., but it's not clear whether they have as many rights as invited aliens.

(2) What procedures satisfy those process rights? Again, we just don't know. Congress tried to craft procedures to give Guantanamo Bay detainees procedures. The major protection is the CSRTs which were instituted thanks to Justice O'Connor in Hamdi, and those who wanted to challenge the CSRT process could appeal that to the federal courts. Furthermore, those who were subject to military commissions had the right to appeal decisions to a federal court. All of that just got thrown out the window. The courts are just going to make it up as they go, using the limited guidance of Justice Kennedy in today's decision.

Second, Drew writes:

One last thought...will the US Military now have to read everyone they capture their Miranda rights? Will they have to collect and preserve evidence the same way cops do? How can they not if the people they capture will now be going to regular US criminal courts? The bottom line...it will be impossible to get convictions but that's just a minor inconvenience if you are an exalted justice of the US Supreme Court.

No, the Court did not change the pursuit of war into a pursuit of justice...I think. The Guantanamo Bay detainees now have the right challenge the legality of their detention, but they haven't been granted all the rights of citizens in criminal situations. Miranda rights are founded in the Fifth and Sixth Amendments, they apply in the criminal law context. Today's opinion hasn't changed that. Likewise, the evidenciary rules come from the Fourth Amendment and apply to the specific context of criminal trials. Today's opinion hasn't changed that.

However, it's possible that later courts will decide that they should apply to military detentions, and it's the Court's discussion of hearsay that really bothers me as to this possibility. The hearsay rule of evidence is largely a common law rule not founded in the Constitution. But Kennedy's opinion seems to indicate that some version of the rule preventing hearsay is appropriate for military detainees (notwithstanding O'Connor's contrary finding in Hamdi). In the criminal context, hearsay sometimes implicates the Confrontation Clause of the Sixth Amendment. Does the Sixth Amendment, or some portion of it, now apply to military detainees? A plausible argument can now be made that it does. No doubt that argument will be made in the detainees' habeas petitions.

Okay, that's all from me for now. I'm actually supposed to be studying for the bar right now and there isn't any section on the War on Terror.

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posted by Gabriel Malor at 10:42 AM

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