On February 20, 2007, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an important decision in long-running litigation brought by detainees held by the United States at the Guantanamo Bay, Cuba military facility.[1]  Disposing of a score of consolidated appeals involving 63 foreign nationals, the two-judge majority in Boumediene v. Bush held that the Military Commissions Act of 2006 (MCA), which withdrew U.S. court jurisdiction over these cases, did not violate the U.S. Constitution.[2]  A dissenting judge would have held unconstitutional the MCA’s withdrawal of jurisdiction, as well as the procedures used to classify detainees as enemy combatants.   Unless overturned by the Supreme Court, this decision effectively ends currently pending federal court litigation of the Guantanamo detainees.    

Background

In November 2001, President Bush, claiming authority as Commander-in-Chief and pursuant to Congress’s September 18, 2001 Authorization for Use of Military Force (AUMF),[3] issued a military order authorizing the Secretary of Defense to detain and try by military tribunals any person who was, among other things, “not a United States citizen” and found by the President – through unspecified procedures – to be a member of al Qaeda or someone who engaged in or plotted terrorism against the U.S.[4] 

In early 2002, the first detainees from the conflict in Afghanistan arrived at Guantanamo.   Through relatives, some of the detainees whose cases were consolidated under Boumediene filed suit in federal court against U.S. officials, denying that they were members of Al Qaeda or otherwise engaged in hostilities against the United States, and challenging the legality of their detentions without trial or access to counsel on the grounds that they violated the Constitution, federal statutes and international law.  The government moved to dismiss the cases. The government relied on the legal theory that, under Johnson v. Eisentrager – a 1950 case in which the Supreme Court dismissed habeas petitions filed in federal court by Germans convicted by a U.S. military court in China and imprisoned by the U.S. in occupied Germany[5] –  no legal claims by “aliens held abroad . . . are within the subject matter jurisdiction of . . . any United States court.”[6]  The government also argued that, although the U.S. “uses and occupies” Guantanamo under the terms of a lease from Cuba, the base “is in the sovereign territory of the Republic of Cuba.”[7]

D.C. Circuit’s First Decision Reversed by Supreme Court in Rasul

In a March 2003 decision written by Judge A. Raymond Randolph, the D.C. Circuit held, in its first case concerning Guantanamo detainees, that (1) “Cuba – not the United States – has sovereignty over Guantanamo” as the result of leases signed in 1903 and 1934, and (2) as “aliens” captured abroad and held by the United States, who “have never had any presence in the United States,” the detainees have no rights under the U.S. Constitution and therefore “cannot invoke the jurisdiction of our courts to test the constitutionality or the legality of restraints on their liberty.”[8]  The court relied on Eisentrager, noting that “the heart of Eisentrager” is the link between individual rights under the U.S. Constitution and access to U.S. courts.[9]  The court understood Eisentrager to hold that U.S. courts are not open to aliens, even those not adjudicated to be enemy combatants or alien enemies, if the aliens have always been outside the sovereign territory of the United States and therefore lack rights under the U.S. Constitution.[10]  This application of Eisentrager led the D.C. Circuit to conclude that the Guantanamo detainees were also precluded from litigating claims under international law or the Alien Tort Statute (ATS), 28 U.S.C. § 1350.[11]  

In the 2004 case Rasul v. Bush, the Supreme Court reversed the D.C. Circuit, 6-3, holding that U.S. courts have jurisdiction under the federal habeas statute to hear lawsuits filed by aliens detained at Guantanamo.[12]  The Court found Eisentrager not controlling because, unlike the German prisoners, the Guantanamo detainees “are not nationals of countries at war with the United States;” they deny that they engaged in hostilities against the United States; “they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing;” and they were “imprisoned in territory over which the United States exercises exclusive jurisdiction and control” as the result of its leases with Cuba.[13]  Moreover, the Court stated, as a result of a series of Supreme Court cases, the statute providing jurisdiction over habeas cases in federal district courts had changed since Eisentrager.  The provision permitting courts could to hear habeas cases “within their respective jurisdictions” had been interpreted to mean, since Eisentrager, that the detainee need not be within the territorial jurisdiction of the court as long as the government custodian is within that jurisdiction.[14]  The Court further stated that  “[c]onsidering that the [habeas] statute draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee’s citizenship.”[15]  The Court also held that the federal courts had subject matter jurisdiction to hear the detainees’ claims alleging violations of international law under the ATS.[16]

Congress and the Executive Respond to Rasul

Following Rasul, a large number of new habeas petitions were filed by detainees (including several that would eventually be consolidated in Boumediene).  Spurred to action by Rasul and these cases (as well as Hamdi v. Rumsfeld, in which the Court limited Executive discretion in the treatment of U.S. citizen detainees in the war on terrorism[17]), the Executive created in July 2004 a Combatant Status Review Tribunal (CSRT) process at Guantanamo.  Under the CSRT, three commissioned military officers reviewed whether alien detainees were properly classified as enemy combatants.[18]  The procedures did not allow detainees to see classified evidence or have a lawyer.  By 2005, all Guantanamo detainees had been processed through the CSRTs, with the vast majority deemed enemy combatants.[19]  (A few detainees were slated for trial before military commissions. This issue, however, was not raised in Boumediene).

Detainees continued to file habeas petitions in federal court, many of which added challenges to the procedures employed in and decisions reached by the CSRTs to other claims related to their detention.  In the district court for the District of Columbia, one judge upheld the detainees’ right to challenge their incarceration under the Fifth Amendment to the U.S. Constitution and the Third Geneva Convention,[20] while a second judge held that aliens captured and detained outside the United States lacked any cognizable rights under the Constitution and that separation of powers principles precluded federal courts from adjudicating claims of the detainees under international law where Congress had properly authorized their detention.[21]  The cases were consolidated for appeal to the D.C. Circuit, but it would be two years before that court would decide Boumediene.

In December 2005, Congress enacted the Detainee Treatment Act (DTA) which, among other things, amended the habeas statute to provide that “no court, justice, or judge” may exercise jurisdiction over any suits filed by aliens at Guantanamo, except that the D.C. Circuit would have exclusive jurisdiction to review challenges to final determinations of status reviews by CSRTs and formal trials by military commissions.[22]  In June 2006, in Hamdan v. Rumsfeld, the Supreme Court held that the DTA withdrew jurisdiction of federal courts only over future, not pending, cases.[23]  The Boumediene detainees’ cases were still alive.

The Military Commissions Act of 2006

The MCA, signed into law in October 2006, was Congress’s response to Hamdan.  The act states that it applies to “all cases, without exception, pending on or after the date of the enactment” brought by any “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.”[24] The MCA removes the jurisdiction of any “court, justice, or judge” to hear these cases, with the exception of the limited review in the D.C. Circuit, mentioned above, provided by the DTA.

The Boumediene Decision

As a result of the changes in the law brought in succession by the DTA, Hamdan and the MCA, the cases consolidated under Boumediene were pending in the D.C. Circuit for approximately two years, as the court considered multiple rounds of briefing and oral argument. 

On the threshold statutory issue, the court unanimously agreed that the MCA applied to the detainees’ cases.[25]  The difficult question, which divided the court, was whether it was constitutional.  The majority (Judge Randolph, joined by Judge David B. Sentelle) and dissent (Judge Judith W. Rogers) each proceeded on the assumption that the MCA was not a formal constitutional “suspension” of the writ of habeas corpus; the MCA neither states that it is a suspension nor makes findings of the existence of one or both of the predicates mentioned in second clause of the Constitution’s Suspension Clause (“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.”).  Rather, the majority and dissent both viewed the MCA as an ordinary jurisdictional statute affecting the availability of the writ, and asked whether the MCA’s withdrawal of jurisdiction over habeas petitions by aliens detained abroad as enemy combatants took away an aspect of the writ that is constitutionally protected.  This inquiry requires identifying the scope and contours of “the Writ of Habeas Corpus” that the Constitution expressly mentions and protects, which is distinct from any right of habeas review created by statute.  The Supreme Court has previously decided that, at the minimum, the Suspension Clause protects common law habeas as it existed in 1789 when the Constitution was adopted and the first Judiciary Act created the federal courts and gave them authority to issue writs of habeas corpus.  The Supreme Court, however, has never decided whether the Clause’s protections might evolve over time to be consistent with the expansion of statutory habeas and individual due process rights.[26]

The detainees argued that Rasul had confirmed that they were entitled to the common law writ as of 1789 and that, by taking away access to habeas, the MCA is unconstitutional.  The Boumediene majority did not consider whether the constitutionally protected writ may have expanded since 1789.  Instead, the court reviewed old, mainly English, precedents and held that “habeas corpus would not have been available in 1789 to aliens without presence or property within the United States.”[27]  Because Guantanamo is merely leased from Cuba and not formally subject to the sovereignty of the United States, the court concluded that it is outside the territorial scope of the common law writ circa 1789.  In addition, the majority reasoned, Eisentrager and other precedents “hold[ ] that the Constitution does not confer rights on aliens without property or presence within the United States.”[28]  The majority concluded by denying the government’s request that it convert the detainees’ appeals of the denial of their habeas challenges to the lawfulness of their detentions into original lawsuits of the type allowed by the DTA, which would review – and, the government hoped, confirm – the CSRT decisions that these detainees were enemy combatants.[29]  The cases were thus dismissed for lack of subject matter jurisdiction.

In her dissent, Judge Rogers criticized the majority for viewing the “Habeas Corpus” protected by the Suspension Clause as an “individual entitlement” which perforce does not exist if the affected individual lacks rights under the Constitution.  Suspending the writ when the required predicates of “Rebellion or Invasion” do not exist is, she concluded, “expressly excluded from Congress’s powers.”[30]  The dissent stated that the “well-considered and binding dictum in Rasul” – that “[a]pplication of the habeas statute to persons detained at [Guantanamo] is consistent with the historical reach of the writ of habeas corpus”[31] – should have controlled the outcome in Boumediene.[32]  In any event, the dissent continued, while “[t]here may well be no case at common law” before 1789 that is factually four-square with the Guantanamo detainees’ situations, “[t]he question is whether by the process of inference from similar, if not identical, situations the reach of the writ at common law would have extended to the detainees’ petitions.”  Parsing a number of eighteenth- century English cases, and “piecing together the considerable circumstantial evidence,” the dissent found that the common law writ would have reached aliens at Guantanamo.[33]  Because the 1789 writ would have reached the detainees at Guantanamo, and because neither the DTA nor the MCA substituted a “commensurate procedure” in place of the habeas jurisdiction they removed, the dissent concluded that the MCA’s withdrawal of jurisdiction was unconstitutional.[34]  The dissent further found that the CSRTs and the statutory provisions for limited D.C. Circuit review of final CSRT determinations were not a constitutionally adequate substitute for habeas because, among other defects, detainees are not entitled to counsel before the CSRTs or to see classified evidence used against them and CSRT procedures allow the introduction of evidence resulting from torture.[35]

Further Developments

The parties have proposed a greatly expedited briefing schedule to permit the Boumediene detainees to petition the Supreme Court this term, and we may know quite soon whether the Supreme Court will hear the case again.  In the meantime, Congress may change the law again.  After the November 2006 elections brought Democratic party majorities to Congress, multiple bills were introduced to reinstate habeas jurisdiction for aliens at Guantanamo.[36]  The legal landscape is too unsettled to know what questions the Supreme Court will address, if it grants review.  But if the MCA’s habeas provisions are not repealed, the Supreme Court may be forced to address a difficult and important constitutional question it has thus far tried to avoid:  exactly whom and what does the Constitution’s Suspension Clause protect?