Constitution 3, Gitmo 0

In Boumediene v. Bush, the Supreme Court held that the constitutional guarantee of habeas corpus does apply to Gitmo detainees. The opinion, written by Kennedy, was 5-4 with a concurrence by Souter and dissents by Roberts and Scalia.

SCOTUS first held that the Military Commissions Act did strip the federal courts of habeas jurisdiction over Gitmo. Although Congress could, and did, remove any statutory right to habeas, it could only remove the constitutional right pursuant to the language covering suspension of the writ--invasion or rebellion.

The big issue was whether that applied to Gitmo. SCOTUS looked at prior cases, The Insular Cases, Reid v. Covert and Johnson v. Eisntrager, and drew from them the conclusion that the question of application of the writ turned on pragmatic questions rather than a determination of who was the formal sovereign. Specifically, on the extent to which US power over the site of the detention excluded any other legal jurisdiction. For example, Eisentrager hinged on the practical problems of producing the prisoners. There was also the fact that the US occupation force in Germany operated under an Allied command, not a US one and that the plan was ultimately to turn power back over to Germany. In Gitmo, the Cubans have been boxed out for over a century. Further, any practical difficulties in applying the habeas writ that had been dispositive in the earlier cases didn't apply in Gitmo.

The court then held that the limited appellate process that the Detainee Treatment Act (DTA) assigned for overview of the Combatant Status Review Tribunals (CSRT) was not an adequate substitute for the habeas writ in that it didn't allow for admitting exculpatory evidence discovered after or review of the CSRT's findings of fact.

It's a surprisingly encouraging victory and I expect I'll be sending a celebratory check to the ACLU.

I think Scalia's dissent is the more amusing of the two. His assertions that the opinion "will almost certainly cause more Americans to be killed" and that "The Nation will live to regret what the Court has done today" are exercises in hysterics rather than legal thought. His assertion that the military can't always tell who is a threat and who isn't (invoking stories of released Gitmo detainees killing people after release) is an argument for more civilian oversight, not less. If the military can't get it right, what innocent persons are being held as unlawful enemy combatants?

His dissent also ignores that, in Eisentrager, the holding that constitutional protections didn't apply to an alien enemy was distinguishable since no proper procedure had determined that the Gitmo detainees were enemies to begin with. The petitoners in Eisentrager were "active in the hostile service of an enemy power". Scalia embraces the assumption that Gitmo detainees are enemy aliens, when the enemy part is a key fact in dispute for each detainee.

Scalia also has no response to the implication of the opinion's argument that, if US protections don't apply, who has the jurisdiction? The United States is sovereign in Gitmo in all but name. This is also important since Eisentrager also relied on the petitoners never having been within US jurisdiction. Scalia would have us believe the administration's fiction that Gitmo is somehow a territory beyond the reach of anyone's authority.

He also ignores, as the opinion doesn't, Eisentrager's emphasis on the practical difficulties of effecting the habeas writ on the petitioners in that case.