Those of you who read my earlier post on the majority opinion handed down by the D.C. Circuit in Boumediene v. Bush already know that I found the majority's reasoning unpersuasive, to say the least. Unfortunately, the dissent is not much better, though it does have the laudable attraction of having come to the correct conclusion. Especially given the numerous flaws in the majority opinion, however, the dissent offers a weak argument for what should be the stronger position and at times is not only weak, but counterproductive.
The Opening Argument: A Non Sequitur
The opening portion of the dissent (Pages 1-9) is probably the most unhelpful, as it makes an argument that is both constitutionally suspect and ultimately undermines the dissent's position. The argument is a response to the majority's assertion that the detainees have no constitutional rights because they have no presence or property in the United States. To attack that assertion, the dissent attempts to distinguish the Suspension Clause from the Bill of Rights by asserting that the former does not give rise to rights but rather is a limitation on Congressional power.
That may seem, at first glance, like an effective argument, but it severely misreads the Constitution and the intent of the framers. The entire Constitution is a limitation on governmental power...the federal government has only the powers expressly granted to it or necessarily incident to its express powers. The framers were reluctant to add a Bill of Rights for fear that the singling out of certain rights would lead to the inference that only those rights were protected against federal interference. To avoid that implication, the Ninth Amendment was added, which states:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Ninth Amendment is a recognition that the framers were firm believers not only in limited government but also in natural rights. Of particular concern to the Boumediene case is the fact that the framers viewed the right to habeas corpus as a critical check on executive oppression. They also clearly felt that the Suspension Clause created a constitutional right to habeas.
Both the majority and the dissent make a hash out of constitutional history, but the dissent's effort is far worse, as the claim that the Suspension Clause is merely a governmental limitation and not also a recognition of fundamental rights undercuts much of the emotional and legal force behind the detainees' case. By arguing so vociferously for the position that the Suspension Clause is only a check on governmental power, the dissent appears to concede that the majority is correct to argue that the detainees have no affirmative constitutional rights. That is hogwash.
Everyone agrees that the MCA strips the detainees of their statutory right to habeas corpus. The question in this litigation is whether Congress' elimination of that statutory right amounts to an unconstitutional suspension of habeas. Phrased differently, the question is whether the detainees have a constitutional right to pursue habeas notwithstanding the MCA's purported revocation of access to U.S. courts. To answer that question, the only logical first step is to determine whether habeas corpus as understood in 1789 would extend to these detainees today. Why? Because the Supreme Court has repeatedly held that, at a minimum, the Suspension Clause protects habeas as it existed in 1789. Thus, if the 1789 writ would have been available to the detainees, they must be allowed access to the courts today.
The false dichotomy the dissent sets up between affirmative rights and governmental limitations obscures this point. The discussion about aliens' supposed lack of constitutional rights generally is a non sequitur; all that matters is whether the 1789 writ of habeas corpus would have been available to prisoners in the position of today's Guantanamo Bay detainees. The rest is just a sideshow.
The Dissent Tackles the Real Question
Once Judge Rogers analyzes the meat of the matter (the scope of the 1789 writ) the dissent becomes much stronger. Quoting Rasul, Judge Rogers makes one of the strongest points in the detainees' favor:
"At common law, we know that 'the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of ‘the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown.'"
This one sentence drives a stake through the proverbial heart of the majority opinion, in which the court argues (through selective misquotation of precedent and historical half-truths) that sovereignty is the touchstone of the reach of habeas and GTMO would not have been reached by the 1789 version of habeas. If anything, the dissent spends too much time analyzing the particulars before it gets to the true death blow to the majority opinion: the Rasul Court's considered dictum that
[a]pplication of the habeas statute to persons detained at the [Guantanamo] base is consistent with the historical reach of the writ of habeas corpus.
That's really game, set, and match right there, at least as far as the D.C. Circuit is concerned. After all, the last time I checked lower courts were bound by Supreme Court holdings. The majority apparently disagrees with this legal truism, and the dissent (if anything) fails to adequately take the majority to task for its willful disregard of Rasul. As pointed out earlier, the key initial question in this litigation is whether the 1789 writ would have reached these detainees. The Rasul Court stated (or at least strongly implied) that it would. Rather than leading with the false rights/limitations dichotomy, the dissent would have been better served to repeatedly beat the majority over the head with Rasul. By hiding the Rasul point in the middle of the dissent, the opportunity to highlight the majority's brazen defiance of the Supreme Court is somewhat lost. Realistically, the majority opinion is the worst type of "activist judging," and that point does not come through strongly enough in the dissent.
Picking Apart the Majority's Affirmative Arguments
After mentioning what should be the controlling law as set forth by the Supreme Court, the dissent then goes on to deconstruct the panel majority's affirmative arguments for its position. First, Judge Rogers points out the majority's misquotation of Lord Mansfield in Rex v. Cowle, which actually stands for the proposition "that the writ of habeas corpus ran even to places that were "no part of the realm," where the Crown’s other writs did not run, nor did its laws apply." It may at this point come as little surprise that the Rasul Court also read Cowle this way (for one reason or another, the majority barely makes an effort to conceal its contempt for Rasul). The dissent also provides some interesting historical evidence regarding the scope of habeas in English history, the most notable of which is unfortunately tossed in as an aside. According to the dissent,
English common-law courts also recognized the power to issue habeas corpus in India, even to non-subjects, and did so notwithstanding competition from local courts, well before England recognized its sovereignty in India.
If the dissent's rendering of the history is accurate, this is a fairly strong piece of evidence supporting the extension of habeas to the GTMO detainees.
Finally, the dissent turns to the majority's reliance on Johnson v. Eisentrager, and unfortunately things once again become incredibly muddled. The dissent initially attempts to distinguish Eisentrager on the basis of its rights/limitations dichotomy (which is perhaps why the dissent spent so much time setting up the dichotomy in the first place). According to Judge Rogers, Eisentrager is inapposite here because in that case, the petitioners claimed a constitutional right to habeas, whereas in Boumediene, the petitioners claim that Congress unconstitutionally revoked a preexisting statutory right to habeas. This interpretation is not only a misreading of Eisentrager, but also a clear misinterpretation of the Suspension Clause. Taking Judge Rogers at face value, she believes that the Suspension Clause only comes into play if a statutory right already existed, which means she is on Attorney General Gonzales' side when he claims that there is no constitutional right to habeas corpus. That argument is demonstrably wrong.
As for Eisentrager, the petitioner there actually claimed that the habeas statute applied to them, and in the alternative that they had a constitutional right to habeas corpus. The dissent's claim that statutory law was not at issue is simply false. In denying both rights to the Eisentrager petitioner, the Supreme Court relied on six factors, specifically that the petitioner:
(a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.
Rather than distinguishing Eisentrager on the basis of the inapplicability of these factors (all of which were critical to the outcome in that case), the dissent instead relies on its false dichotomy. Why Judge Rogers chose that approach escapes me entirely. It is conceded by the majority that the detainees here are not enemy aliens, it is undisputed that they have not yet been tried or convicted of anything, and while imprisoned "outside the United States" they are imprisoned on a military base within the exclusive jurisdiction and control of the U.S. Those factors alone are more than sufficient to distinguish Eisentrager, but the dissent mentions none of them. Which omission is particularly bizarre given that the Rasul Court distinguished Eisentrager in the very manner I have here.
The Balance of the Dissent
The rest of the dissent (Pages 19-34) is necessary as a matter of legal analysis given the posture of the case, but not particularly noteworthy here and I won't spend too much time on it. First, Judge Rogers concludes that the Combatant Status Review Tribunals (CSRTs) provided for by the MCA are not an adequate substitute for habeas review. This analysis is necessary because the Supreme Court has held that there is no suspension of habeas corpus if Congress provides an adequate alternative remedy. I of course agree that the CSRTs do not so qualify and think that position is uncontroversial. Habeas has traditionally provided a searching review of executive detention, while the CSRTs and the review afforded the D.C. Circuit under the MCA is quite superficial.
Next, the dissent points out that there is no invasion or rebellion that would render a suspension of habeas constitutional, a point that is again uncontroversial.
Finally, the dissent spends a fair amount of time reasoning out what procedure should apply should the merits of the detainees' case ever need to be analyzed. Ultimately, Judge Rogers decides that the traditional statutory procedure should be utilized, which makes sense and I think would be the consensus choice of any panel of judges who agree that the merits should be reached.