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What Might the Court Do in Boumediene? And How Might Congress Respond?

By Jack M. Balkin

OK, if you insist, Deborah, a few predictions . . . with the caveat that my track record on these matters has been decidedly mixed of late.

First, what will the Court do? (For a quick summary of the three questions raised in Boumediene, see my initial post here.)

In Boumediene -- unlike in Hamdan, Hamdi and Rasul -- Justice Kennedy almost certainly was assigned to write the "lead" opinion. After oral argument, my prediction was that he was writing for two separate five-Justice majorities: (i) for one majority, an opinion holding that article I's Suspension Clause (and perhaps the Due Process Clause, too) applies to the detainees at GTMO; but (ii) for a different majority, holding that the MCA/DTA provision for D.C. Circuit review of CSRT decisions is an "adequate alternative" to habeas, thereby sustaining the constitutionality of the MCA/DTA review system. (In its cert. grant, the Court virtually invited the D.C. Circuit to demonstrate that its review of the Pentagon's decisions would be robust; and at oral argument, Justice Kennedy focused on the question of why the D.C. Circuit could not itself ensure compliance with constitutional and statutory standards.)

But then, after Boumediene was argued, the D.C. Circuit issued its en banc opinions in the Bismullah case, which were followed by the Bush Administration's own petition to the Supreme Court in that case. Those opinions and that petition demonstrated (i) that the Bush Administration was going to continue to fight tooth and nail, on several fronts, to try to ensure that the D.C. Circuit review of CSRT detention decisions is significantly constrained, with limited governmental obligations to disclose all possible relevant evidence, and a great deal of judicial deference to the Pentagon; (ii) that the D.C. Circuit itself is acrimoniously torn in half (five-five) over such questions; (iii) that therefore there is a very good chance the court of appeals' ultimate review over detention decisions will be far from robust; and, perhaps most importantly, (iv) that the legal disputes about the nature of such review are so controversial, so numerous and so closely contested below that it will likely be many years, if at all, before the GTMO detainees would obtain any meaningful review of the legality of their detentions.

All of which is to say that although the Bush Administration represented to the Court in Boumediene that the D.C. Circuit review was virtually equivalent to what the detainees would receive on habeas, the Bush Administration's posture in Bismullah revealed that its manifest design under the MCA/DTA process is to drag out the detention process indefinitely, and to strenuously resist any serious review of CSRT decisions. Presumably Justice Kennedy could not help but notice, from the example of Bismullah, that if the Court were to hold that the MCA/DTA process is constitutionally sufficient, the petitioners would likely spend many more years in detention, regardless of the merits of their petitions. And in that case, a SCOTUS holding that the GTMO detainees are protected by the Constitution would be of small solace, and the Court's decision in Boumediene would not bring us materially closer to resolving the GTMO mess.

For these reasons, I am now somewhat hopeful that Justice Kennedy will conclude that the MCA/DTA process is not a constitutionally adequate substitute for habeas. In other words, Bismullah was (perhaps) the best thing that could have happened to the Boumediene petitioners, because it was a concrete demonstration of the constitutional inadequacy of the MCA/DTA process.

Perhaps most significantly for your particular questions, Deborah, whether my original prediction or this updated, post-Bismullah prediction is correct, I think it is unlikely that the Court will resolve two other, more important long-term questions:

(i) whether and to what extent the Constitution protects detainees who are detained elsewhere around the world, such as in Afghanistan. (The AMK opinion, like his opinions in Rasul and Verdugo-Urquidez, might well conclude that the Constitution can apply elsewhere, but that the extent and nature of such coverage is very fact- and context-dependent -- and not, in any event, presented by this case.);

and

(ii) the "merits" question of the legal standard for detention -- in particular, whether Congress has given the President the authority to detain the civilian Bosnian petitioners in Boumediene (see the petitioners' arguments in Parts II of their opening and reply briefs).

If I am right, and the Court does not reach these questions, then I do not see any serious impetus for congressional action before the election. Why?

Well, for one thing, the Court's decision will almost certainly not affect the MCA military commissions themselves -- the trials of a small percentage of the GTMO detainees for alleged war crimes violations -- and therefore there will be no call for a new "special court" process to replace the commissions. (If the Court holds that the Constitution applies at GTMO, that might enhance some of the defendants' specific claims and defenses in those trials, such as under the Ex Post Facto Clause (the argument that the conduct they are alleged to have engaged in was not a crime at the time of its commission) -- but that would not in and of itself call into question the very existence of the commissions or precipitate an overhaul of the commission process.)

What about a new detention statute, not for those detainees to be tried for violations of the laws of war, but for the vast majority of detainees being held indefinitely as "enemy combatants"? Well, if the Court holds that such detainees are entitled to habeas, and that the D.C. Circuit scheme is not an adequate substitute, then any new replacement regime Congress might legislate would have to effectively recapitulate the protections of habeas -- and why should Congress bother with that, once habeas proceedings have commenced?

If, on the other hand, the Court holds that the D.C. Circuit review is an adequate substitute for habeas, then the government presumably will be content to go forward with the MCA/DTA process, and D.C. Circuit review, even if the detainees are now permitted to raise constitutional claims within that process (something that Congress could not effectively change, anyway).

The one result that might prompt legislative proposals would be if the Court did hold, on the "merits," that the Bush Administration's substantive detention authority is much narrower than what the Administration has been asserting and applying -- holding, for instance, that the 2001 force authorization statute did not give the President the authority to detain civilians who are not subject to the command and control of al Qaeda. In that (unlikely) event (it's not that I think the Court will hold otherwise -- I simply think there's only a small chance the Court will reach the merits question), then the Bush Administration might come forward with draft legislation broadening executive authority to indefinitely detain a much larger category of civilians -- such as those who have allegedly, in one way or another, "assisted" al Qaeda or "groups associated with al Qaeda" or, more to the point from the Bush perspective, persons who are not "combatants" but who might have some intelligence value. But such a proposal would, I hope, be tough sledding in Congress, precisely because it would focus the legislature's and public's attention on the strikingly broad and novel nature of the sort of non-combatant detentions that have become a hallmark of the Bush Administration campaign against al Qaeda.

Full post as published by Balkinization on June 02, 2008 (boomark / email).