Executive Detention, Boumediene, and the New Common Law of Habeas

AuthorBaker Azmy
PositionProfessor of Law, Seton Hall Law School

Professor of Law, Seton Hall Law School. The author was counsel to Murat Kurnaz, one of the petitioners in Boumediene v. Bush, and participated in much of the briefing in the pre-and post-Boumediene litigation. Thank you to Jenny-Brooke Condon, Tina Foster, Eric Freedman, Rachel Godsil, Michael Granne, Jonathan Hafetz, Edward Hartnett, Thomas Healy, Aziz Huq, Matthew Maclean, Joe Margulies, Scott Michelman, Barbara Olshansky, David Reiss, Richard Schragger, and Tom Wilner for very helpful comments and insights throughout the drafting process and to Victoria Cioppettini for excellent research assistance.

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I Introduction

In September 2004, thousands of miles from home and after nearly three years of incommunicado detention without legal process, Murat Kurnaz finally learned the U.S. government's reason for detaining him. That day in a grey, ersatz courtroom in Guantanamo Bay, a panel of anonymous military officers comprising his Combatant Status Review Tribunal ("CSRT")1 announced that Kurnaz was deemed an "enemy combatant" in part because his hometown friend in Germany, Selcuk Bilgin, had "engaged in a suicide bombing."2 Under CSRT regulations, a Guantanamo detainee bore the burden of disproving the charges against him.3 Yet, not having seen Bilgin for years and without access to any information, let alone counsel, all Kurnaz could say to defend himself was that he had no idea Bilgin had ever done anything violent and that, "I don't need a friend like that."4 Because mere association with a terrorist was sufficient to establish "enemy combatant" status under the CSRT,5 his limited defense did not change the Defense Department's judgment.

Also unbeknownst to Kurnaz, earlier that summer lawyers had filed a habeas corpus petition on his behalf challenging his detention in federal court, pursuant to the U.S. Supreme Court's ruling in Rasul. As a return (or answer) to the habeas petition, the Government submitted the transcript of Kurnaz's CSRT and the panel's summary written judgment.6 Once the lawyers learned the basis for Kurnaz's detention, which had remained secret for years, they took no more than a week to accumulate ample evidence to prove the central charge against Kurnaz was absurd: Bilgin was alive and well in Germany and under no suspicion by German authorities.7 The other Page 448 allegations in the return were similarly false or flimsy.8 Had Kurnaz been able to proceed with his habeas action in district court, a judge would very likely have granted him-and numerous others like him-the writ.9

Instead, Congress foreclosed Guantanamo detainees' access to the Great Writ altogether. Specifically, in passing the Detainee Treatment Act of 2005 ("DTA")10 and the Military Commissions Act of 2006 ("MCA"),11Congress replaced Rasuls promise of meaningful judicial review of the Executive's "enemy combatant" designations with exceedingly constrained review in the court of appeals that mandated acceptance of the CSRT's frequently dubious factual conclusions.12 Thus, unlike in a habeas proceeding in district court, under the DTA, the court of appeals would have had to accept as true the CSRT's conclusion that Kurnaz's friend was a suicide bomber, even though it was objectively, demonstrably false.13

In Boumediene v. Bush,14 the Court restored the detainees' access to habeas corpus, rejecting for the first time in history the collaborative judgment of the political branches exercised in connection with military operations. Faced with anecdotes like Kurnaz's,15 compelling arguments Page 449 regarding the structural defects of the CSRT process,16 and an increasing skepticism about the Executive's ability to act lawfully absent judicial supervision,17 the Court ruled that the constitutional protections of the Suspension Clause reached extraterritorially to Guantanamo (and perhaps beyond) and that the DTA's alternative review scheme was not an "adequate substitute" for the full protections of habeas corpus. In effect, the Court decided that the indefinite military detentions in Guantanamo violated fundamental separation-of-powers principles enshrined by the Suspension Clause, even if justified by the executive branch to the satisfaction of the court of appeals, pursuant to standards set by Congress.18

Viewed one way, the decision easily falls along the continuum of previous "enemy combatant" cases such as Hamdi, Rasul, and Hamdan v. Rumsfeld19 (a grouping I refer to as the "Enemy Combatant Triad" or the "Triad"). The Court in Boumediene, as it had in these cases, authoritatively rejected the Executive's assertion that the executive branch should have full discretion, unfettered by any judicial supervision, to conduct detention operations. Viewed another way, however, the Court went significantly further than it had ever gone before. Largely setting aside a premise of Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure),"220 which governed the Enemy Combatant Triad, the Boumediene Court refused to defer to the concerted efforts of the political branches, where the judicial power should presumptively be at its weakest.

As a result, the Court elevated the judiciary to a preeminent role in reviewing military detention operations and assumed exclusive jurisdiction and control over habeas cases brought by two-hundred-plus Guantanamo detainees. Equally important, the Court chose not to limit its holding to the peculiar legal and physical space of Guantanamo Bay. Instead, it set forth a broad and assertedly judicially manageable framework to ascertain what, if any, constitutional rights might apply to other extraterritorial executive conduct. In addition, while the Court identified core deficiencies in the DTA process, it declined to define the substantive law that would govern the Executive's asserted authority to detain enemy combatants or to set forth a detailed procedural framework by which the hundreds of habeas cases should proceed in the lower courts. Page 450

As this Article explains, Boumediene issued a largely unlimited invitation to the lower courts to create a whole new corpus of habeas law in the context of military detention-a body of law that, save for several marquee Civil War-era cases,21 has largely remained undeveloped since Reconstruction. Not surprisingly, the decision was subject to heated censure from within the Court22 and without,23 as critics attacked the Court's failure to defer to political branches in the arena of military judgment or to provide meaningful guidance for administering its broad decree.

This Article praises Boumediene'is historic judgment, defending the Court's asserted role as necessary and correct. This Article also attempts to bridge the gap between the strong normative value of separation of powers, which undergirds the Court's decision, and the concrete questions regarding the applicability of this norm to individual cases the district courts have been and will continue to adjudicate on remand. In so doing, this Article develops a comprehensive framework for what will be an ongoing discourse about this new common law of habeas.24

Section II develops the context for understanding the significance of Boumediene as a landmark separation-of-powers decision by demonstrating the way in which it marks a significant departure, in terms of doctrinal and practical effect, from the Enemy Combatant Triad. Section III explains the decision along the interrelated axes of substance and methodology. In deciding whether the Suspension Clause has force extraterritorially, the Court rejected a series of proposed categorical rules and a constrained Page 451 reading of the historical record that would have limited constitutional rights only to places over which the United States exercises formal political sovereignty. In place of such rules and history, Section III also explains, the Court developed a robust theory of separation of powers that obligated the judiciary to prevent the Executive from manipulating formal jurisdictional rules in an attempt to "govern without legal constraint." This Section contends that, in adopting...

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