Boumediene Guest Commentary: Jonathan Hafetz of the Brennan Center

This post was authored by Jonathan Hafetz of the Brennan Center for Justice at New York University School of Law. The center filed an amicus brief in the case on behalf of specialists in Israeli Military Law and Constitutional Law.

The Supreme Court’s decision in Boumediene v. Bush delivered a decisive blow to two central elements of the Bush administration’s post-9/11 detention policy: that the Constitution has no application to foreign nationals held outside the United States; and that the remaining 275 foreign nationals there can be indefinitely deprived of their liberty without a meaningful hearing. The third consecutive defeat for the administration in Guantánamo cases, Boumediene is also the most important and far-reaching.

For most Guantánamo detainees, time has become the worst form of punishment, with the prospect of never-ending confinement without charge replacing harsh interrogation tactics as the main instrument of torment. But time also ultimately proved the administration’s undoing, giving the Court long enough to absorb fully Guantánamo’s legal and moral bankruptcy. If the last six years at Guantánamo have produced any good, it has been to show, once and for all, that categorical limits on constitutional protections have no place in any country committed to justice and the rule of law

As expected, the Court rejected political sovereignty as the test for determining the applicability of the habeas corpus Suspension Clause beyond America’s shores. Such a bright-line test may be simpler to administer than the more flexible multi-factored approach the Court adopted in Boumediene, which looks beyond citizenship to the adequacy of the process the detainee received, the nature of the sites of the detainee’s seizure and confinement, and the practical obstacles, if any, to habeas review. But, as Justice Kennedy explained, this bright-line test suffers from a far worse flaw: it is “subject to manipulation by those whose power [habeas corpus] is designed to restrain.” The last six years at Guantánamo have confirmed the wisdom of these words, demonstrating the human harms and legal injustices that result when the executive deliberately circumvents judicial checks on its detention power.

Time too has exposed the manifest inadequacy of the substitute process the administration and Congress created to replace habeas corpus: the limited appellate review under the Detainee Treatment Act (“DTA”) of decisions by a Combatant Status Review Tribunal (“CSRT”). The Court’s critique of this process was piercingly accurate. First, the Court said, DTA review was never meant to provide a substitute for habeas but to do precisely the opposite-to create an inferior process for individuals who had no right to the writ at all. Second, this alternative truly was inferior to habeas corpus, denying detainees a meaningful opportunity to present and confront evidence in challenging their indefinite executive imprisonment, precisely where protections secured must be strongest.

As the Court understood, the administration’s real goal has been to prevent meaningful review in any forum, whether through habeas corpus or the DTA. In Boumediene, the government extolled the virtues of DTA review, and the Solicitor General urged the Court to read the DTA expansively to preserve the statute’s constitutionality. But at the same time in separate litigation under the DTA, the administration fought mightily to overturn the D.C. Circuit’s decision in Bismullah v. Gates which attempted to give the DTA some teeth. Guantánamo had become a legal charade, and enough was enough. “The detainees in these cases,” Justice Kennedy announced, “are entitled to a prompt habeas corpus hearing.”

To be sure, Boumediene leaves a series of unanswered questions, from the substantive limits of the executive’s authority to detain “enemy combatants” to the writ’s extension beyond Guantánamo. But it makes plain as day that the United States cannot avoid habeas corpus review simply by detaining prisoners outside the United States, even if they are foreign nationals. While Boumediene may speak through the language and norms of constitutional discourse, it underscores that the right to be free from unlawful detention is, at bottom, a human right.