Making Our Democracy Work (33 page)

In June 2006 the Supreme Court decided its third Guantánamo case,
Hamdan
, which concerned the president’s authority to use these
special military commissions. The case arose when military authorities brought charges before a special military commission claiming that Salim Ahmed Hamdan, who had been Osama bin Laden’s personal driver and bodyguard, was a member of a conspiracy to attack civilians, engage in terrorism, and commit murder. The indictment charged that Hamdan had driven bin Laden to training camps, press conferences, lectures, and similar events, had arranged for the transportation of weapons, and had himself received weapons training.
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Hamdan filed a habeas petition in a federal district court. He argued that his confinement violated the law because he was confined pending trial before one of these commissions and the president lacked the legal authority to try him before such a commission. The district court agreed with Hamdan, but the court of appeals disagreed. The Supreme Court then consented to decide the question and held in Hamdan’s favor, holding that the relevant statutes did not authorize the military to use these special commissions.

The case before the Court involved various questions of statutory interpretation. But the last sentence of the Court’s opinion made an important general point. In “undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the rule of law that prevails in this jurisdiction.” And it reaffirmed “the duty which rests on the courts, in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty.”
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Nonetheless, the basic issue in the case was statutory, not constitutional, and the Court cautiously interpreted the relevant statutes. The key statute said the executive could use military commissions but only “with respect to offenders or offenses that [1]
by statute or
[2]
by the law of war
may be tried by military commissions.” Because no “statute” gave military commissions authority to hear Hamdan’s case, the determinative legal question was whether his case was one that a military commission could try “by
the law of war.”
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Recognizing that the statute’s language invited a historical investigation into what kinds of cases the “law of war” authorized commissions to try, the Court did just that. It concluded that the armed forces have used military commissions only where martial law has been
declared, where civilian courts are not functioning, or where enemy battlefield combatants have violated the laws of war, say by committing atrocities. None of these circumstances was present in Hamdan’s case. Hence the statute did not grant the president the power to try Hamdan before a military commission. Moreover, in the view of some justices, the government’s basic charge, that Hamdan had conspired to help bin Laden commit terrorist acts, did not claim a violation of the “law of war.”
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The Court pointed to another statute, which said that the military must (insofar as is “practicable”) create procedures for military commissions and for courts-martial that are uniform and similar to those in ordinary courts. Where, asked the Court, is the procedural uniformity that this statute demands? Why can the commissions allow hearsay and exclude the defendant from certain proceedings in ways forbidden to courts-martial? Why is uniformity not “practicable”? The Court found no good answers to these questions, and it consequently held that the commissions’ procedures violated the statute’s uniformity requirement. The Court added that the commissions’ unjustified use of nonuniform procedural rules could also violate an international treaty, the Fourth Geneva Convention, which required nations to try members of hostile armed forces in a “regularly constituted court” and to apply “all the judicial guarantees which are recognized as indispensable by civilized peoples.”
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Three members of the Court dissented, reading the history differently. They also argued that Congress had authorized the commissions in the September 11 statute, which authorized the president to respond to the terrorist attacks with military force. They denied that the Geneva Convention applied. And they argued that, in any event, the Court should not have decided the case at that time, but considered the matter only if the commission convicted Hamdan. The remaining member of the Court, the chief justice, did not participate in the case because he had participated in the case earlier as a member of the court of appeals before his Supreme Court appointment.

For present purposes, the salient fact about the Court’s decision is that it turned on the Court’s interpretation of congressional statutes. The Court held that Congress had not issued the president a blank procedural
check. The congressional statute that specifically mentioned commissions authorized the president to establish them only in certain circumstances—not present in Hamdan’s case. Moreover, Congress had mandated certain procedural requirements, not satisfied when the military established Hamdan’s commission, despite the statute’s permission for special procedures when following regular procedures was not “practicable.”

As in President Truman’s steel seizure case, the Court insisted that the executive follow statutory requirements. It held that the executive had not done so, and hence its actions were unlawful. The Court, in examining the statute’s requirement for the use of uniform procedures where “practicable,” recognized the need for workable law. And it took account of the constitutional role of other branches of the government.

The majority pointed out that no emergency or other obstacle prevented the president from asking Congress to give him the authority he believed necessary. (Nor did the Court hold in advance whether or to what extent the Constitution might limit the use of any such later obtained authority.) As far as
Hamdan
is concerned, the Court simply limited the president’s authority to act as he had
on his own
, without legislative authority. Insofar as the Court rested its holding upon statutes, it did not limit the president’s ability, or that of the military, to act in time of hostilities.
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I
N
N
OVEMBER
2006, five months after the Court decided
Hamdan
, President Bush sent to Congress a proposed bill that would ratify his exercise of broad detention authority. And Congress then enacted a new law (as the Constitution permits, and expects, Congress to do when it disagrees with the Court’s interpretation of a
statute
). The new law gave the president authority to establish the military commissions and also broadened the definition of “unlawful military combatant.” Furthermore, the law forbade the courts to determine the lawfulness of detention by measuring it against Geneva Convention standards. And it provided, in respect to habeas corpus, that “[n]o 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 at Guantánamo.
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Thus, the new act made obsolete the Court’s statute-based decision in
Rasul
. It thereby raised the constitutional question of whether Congress, acting by statute, could deprive the Guantánamo prisoners of the right to file a petition of habeas corpus. The question was not straightforward, because Congress had previously given the Court of Appeals for the District of Columbia Circuit explicit authority to review decisions of the Defense Department’s Combatant Status Review Tribunals, including those about whether a detainee was an enemy combatant. The court of appeals could decide whether the tribunal’s determination was “consistent with the …[Defense Department’s] standards and procedures,” and it could decide whether use of those procedures in the detainee’s case “was consistent with the Constitution and laws of the United States of America.” Did Congress, by granting this complicated authority, give the courts back with one hand the very kind of habeas corpus review it had just taken away with the other? If so, it did not deprive the Guantánamo detainees of any habeas corpus right.
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In June 2008, in the case of
Boumediene v. Bush
, the Court decided these questions. The case concerned a group of Guantánamo inmates taken prisoner in several different countries, including Afghanistan, Bosnia, and Gambia. Each detainee denied he was an enemy combatant, but in each case the status tribunal held that the detainee was an enemy combatant. The detainees all filed habeas corpus petitions in the federal district court for the District of Columbia. After the Court decided
Rasul
in 2004, the lower courts began processing those filings in batches and disagreed about the results, so the court of appeals started to review those disagreements. But then along came the new 2006 act, which the court of appeals interpreted as foreclosing any further consideration of the prisoners’ petitions. The Supreme Court agreed to review that court of appeals decision.
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In
Hamdan
the Court had made clear that Congress could pass a new statute, directly authorizing special military commissions. But the Court had said nothing about habeas corpus. In particular, the Court
did not, and it should not, promise Congress that it would simply approve as constitutional whatever statutory changes Congress chooses to make. Congress had made statutory changes, and they required the Court now to face a new issue—a constitutional issue: Did Congress’s statutory habeas corpus changes exceed the Constitution’s limits? Given the centuries-old importance of habeas corpus, the question of whether the Constitution itself granted Guantánamo prisoners the right to file the Great Writ was fundamental.

As previously noted, the Constitution says that Congress may “not … suspend[]” the “Writ of Habeas Corpus … unless when in Cases of Rebellion or Invasion the public Safety may require it.” No one claimed that Congress had applied the “Rebellion or Invasion” exception to suspend the writ. Instead, the government argued that Congress had
not
suspended the writ of habeas corpus, because prisoners like those at Guantánamo had
never
had a basic, constitutionally protected right to file a petition seeking the writ in the first place. (Recall that in
Rasul
the issue was whether the detainees had a
statutory
right to file habeas petitions.) The government argued that when the founders wrote the Constitution in 1789, no court would have issued that writ at the request of a noncitizen held outside the country. Therefore, the Guantánamo prisoners had no constitutional right to the writ. Congress could not have
suspended
any such right, for it could not take away something the prisoners never had.
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The Court, by a vote of 5 to 4, rejected the government’s argument. It held that the constitutional words “Writ of Habeas Corpus” did apply to Guantánamo’s prisoners and that Congress had unconstitutionally suspended the writ. Thus one cannot characterize
Boumediene
as a case in which the Supreme Court followed congressional directions or implemented Congress’s broader purposes. To the contrary, the Court invoked its ultimate judicial review power, holding that both Congress and the president had gone beyond the Constitution’s boundaries. Nonetheless, in doing so, the Court took account of the concerns of the other branches, interpreting the Constitution in a way that reflected an awareness of practical realities. Indeed, the Court used a standard that, in determining the reach of the Constitution’s habeas corpus guaranty, took account of “practical obstacles.”
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In concluding that the writ of habeas corpus was available to the detainees, Justice Kennedy, writing for the Court, first considered the basic values underlying the Constitution’s words. In 1215, King John signed the Magna Carta, in which he promised his barons that “[n]o freeman shall be … imprisoned … except … by the law of the land.” For centuries in England the writ of habeas corpus had helped make a practical reality of King John’s promise. From at least the seventeenth century, the writ allowed judges to ensure that neither the king nor other government officials could unlawfully imprison an individual. Because it prevented arbitrary imprisonment, Blackstone called habeas corpus “the BULWARK of the British Constitution.” The Court wrote that the writ “protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account.” With this background in mind, the Court wrote that the framers of our own Constitution “viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom.” That is why they included “specific language in the Constitution to secure the writ and ensure its place in our legal system.”
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Second, the Court looked into historical practice. The English courts had considered a few petitions filed by aliens, including enemy aliens held in England, an African slave, and a group of Spanish sailors. The English judges had made clear that the writ covered Ireland, Canada, India, and the Channel Islands. But it did not cover Scotland or Hanover. The Court concluded that the historical evidence was too unclear, “too episodic, too meager,” to decide whether the writ’s scope was as limited as the government claimed.
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Third, the Court, taking a “practical approach,” wrote that whether “a constitutional provision has extraterritorial effect depends on the ‘particular circumstances, the practical necessities, and the possible alternatives,’ ” as well as whether “judicial enforcement … would be ‘impractical and anomalous.’ ” The Court held that these considerations strongly supported application of the writ in this case. Guantánamo is “in every practical sense” part of the United States. Our forces at Guantánamo faced no threat from an armed enemy. Application of the writ would create no friction with a “host government.” There was no reason to believe civilian courts and military forces could not work
side by side. And the fact that Guantánamo had no civilian court system in operation meant that a habeas petition offered those detained there the best, possibly the only, way to obtain court review of their detention. In carrying out its role of safeguarding this basic constitutional protection of individual liberty, the Court did not ignore practical difficulties. Indeed, its opinion included the words “practical” or “impracticable” more than a dozen times. It held that it was not impractical to ensure the Guantánamo prisoners access to the writ of habeas corpus, and it held that the Constitution did so.
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