As everyone is no doubt aware, a panel for the D.C. Circuit Court of Appeals recently handed down its 2-1 decision in Boumedeiene v. Bush, in which the majority held that detainees held at the U.S. Naval Station in Guantanamo Bay, Cuba (GTMO) have no recourse to habeas corpus in U.S. courts. While the decision has already been diaried (by Big Tent Democrat, TheManWithNoPoint, and rktect), I believe at least part of my analysis will be new and hopefully worth reading, so bear with me and continue below the fold if you're interested.
The majority opinion in Boumediene is one of the most willfully deceptive Circuit Court opinions ever issued. On top of that, it is poorly reasoned and actually undermines itself so fully as to moot the question presented for appeal (more on that later). Perhaps the conservative judges on the court are simply running out of material, having already been rebuked by the Supreme Court in Hamdan and Rasul. Whatever the reason, this decision is riddled with analytical holes and half-truths and is unlikely to survive likely en banc review by the full D.C. Circuit intact.
What's so bad about the opinion? Let us count the problems:
Moving the goalposts regarding basic constitutional law
The very first sentence of the court's constitutional analysis is:
The Supreme Court has stated that the Suspension Clause protects the writ "as it existed in 1789," when the first Judiciary Act created the federal courts and granted jurisdiction to issue writs of habeas corpus.
Amazingly, both clauses of this sentence contain some judicial sleight of hand; we'll take them one at a time. First, the Supreme Court has repeatedly held that the Suspension Clause protects at least the writ as it existed in 1789, leaving open the obvious contrary possibility that the Suspension Clause protects more than the founding-era version of habeas corpus. See, e.g., INS v. St. Cyr and Felker v. Turpin.
The distinction is not trivial, which becomes clear later in the opinion as the D.C. Circuit majority bends over backwards to demonstrate that the writ in 1789 would not have applied to people in the position of the GTMO detainees. Rather than analyzing the precise question of what the Suspension Clause protects (an issue so thorny that the Supreme Court has avoided addressing it at all costs), the panel majority simply leaves the false implication that the law is already settled and the Suspension Clause is limited to the 1789 writ.
The second clause, which is seemingly irrelevant at this early stage of the opinion, is there to set up the argument that no constitutional right to habeas exists at all; access to the writ may only be granted by statute. Other folks, most notably Alexander Hamilton, had a different view:
And yet the opposers of the new system, in this State, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. To justify their zeal in this matter, they allege two things: one is that, though the constitution of New York has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the Constitution adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed in it, are equally secured.
To the first I answer, that the Constitution proposed by the convention contains, as well as the constitution of this State, a number of such provisions.
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Section 9, of the same article, clause 2 -- "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."
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It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State. The establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which we have no corresponding provision in our Constitution, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.
I won't add much to Hamilton's words, mostly because I could not say it any better and, to a lesser extent, because the majority focuses not on the lack of a constitutional right to habeas, but instead on geography, as you'll see in the next section.
Absurd interpretation of history and disregard for Rasul v. Bush
The D.C. Circuit panel majority makes the crucial question in the case whether or not the detainees in question are being held within "the territory of the sovereign." To the majority, the most important factor in determining the scope of habeas corpus in 1789 was whether the prisoner in question was being held on the King's land. I actually agree with the majority here, though I would phrase the conclusion differently: the key question is whether the detainee is being held in territory governed by the power of the executive.
From there, however, the majority engages in a bizarre line of reasoning that is difficult to take seriously. Comparing GTMO to "remote islands, garrisons, and other places" from the founding era, they state that the law is clear that the writ did not extend to such places. But why not? Not due to lack of jurisdiction, but due to physical impracticality.
According to precedent cited by the majority itself (Rex v. Cowle), writs of habeas corpus were not issued overseas "notwithstanding the power." The reason for the British courts' reluctance to issue writs overseas at that time in history is entirely tied to the Habeas Corpus Act of 1679, which provided strict deadlines for production of the prisoner, which if they were not met would result in steep fines for the jailor. Given the transportation available at the time, it simply was not practical to bring overseas prisoners to England on writs of habeas corpus. Today, such concerns obviously do not apply.
More problematic for the majority is its breezy distinguishing of Rasul, which Big Tent Democrat exposed as the nonsense it is in his diary. GTMO is under the "complete jurisdiction and control" of the U.S., which is why the Rasul Court saw no difficulty in extending the reach of the habeas statute to GTMO. But what of habeas as it existed in 1789? The majority would have us believe that the evidence is clear that habeas would not have extended to an area such as GTMO at that time. The 1679 Habeas Corpus Act, however, provides clear evidence to the contrary.
Section XI of the Act states:
And be it declared and enacted by the authority aforesaid, That an habeas corpus according to the true intent and meaning of this act, may be directed and run into any county palatine, the cinque-ports, or other privileged places within the kingdom of England, dominion of Wales, or town of Berwick upon Tweed, and the islands of Jersey or Guernsey; any law or usage to the contrary notwithstanding
To understand the relevance of this section, one must understand what a county palatine was:
Counties palatine were established in the 11th century to defend the northern (Scottish) and western (Welsh) frontiers of the Kingdom of England. In order to allow them to do so in the best way they could, their counts were granted palatine ("from the palace", i.e. royal) powers within their territories, making these territories nearly sovereign jurisdictions with their own administrations and courts, largely independently of the king, though they owed allegiance to him.
In other words, habeas in 1789 was understood to extend to areas that were essentially separate sovereigns from the Kingdom of England, yet which owed ultimate, theoretical allegiance to the King. Suffice it to say that GTMO, as currently established, is more closely under the thumb of U.S. sovereignty than were the counties palatine to British sovereignty in the 17th and 18th centuries. In short, the majority's argument falls apart when the historical record (and not selective quotations from old cases) is analyzed.
The footnote that ate the opinion
Finally, my favorite part of the majority's blunder-riddled opinion is footnote 8, in which the majority concedes that "[t]he detainees are correct that they are not 'enemy aliens.'" That seems like a harmless throwaway line, and the majority makes the concession in an effort to argue that the case of Eisentrager v. Johnson applies regardless of the detainees' status as enemy aliens. But, alas, the majority misses the forest for the trees.
After all, the only reason the case is being argued is because the Military Commissions Act has purported to strip enemy aliens of their statutory right to habeas corpus. Section 7(a) of the MCA amended subsection (e) of the habeas statute, 28 U.S.C. Sec. 2241, as follows:
(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. (2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
Now, unless I am missing some fine distinction between an "enemy alien" and an "alien...properly detained as an enemy combatant," it seems to me that Footnote 8 moots the case entirely. That is, if the detainees are not enemy aliens, then the MCA does not apply and they may still seek statutory habeas relief pursuant to Rasul.
I know this was rather long, but any thoughts/comments are much appreciated, and congrats for making it to the end!