Habeas Half-Truths

Do the critics of Boumediene v. Bush have a case?


In a key decision at the close of its term, the Supreme Court held that 270 detainees at Guantanamo Bay have a constitutional right to habeas corpus, by which they can petition a federal court for a hearing to challenge their detentions. Regrettably, that narrow holding has been misinterpreted and exaggerated by defenders of Bush administration policies to suggest that federal courts will replace military courts in conducting criminal-like trials of alien battlefield detainees. That is not what the Court said. Let's see if we can dispel some of the half-truths and untruths regarding the Court's holding in Boumediene v. Bush.

Writing for a 5-4 majority, split along liberal-conservative lines, swing Justice Anthony Kennedy reached the following conclusions: First, Guantanamo is "technically not part of the United States," but it is under our "complete and total control." Therefore, second, Gitmo detainees have habeas rights that are secured by the U.S. Constitution. Third, Congress can suspend those rights only "when in Cases of Rebellion or Invasion the public Safety may require it." Fourth, Congress's attempt in the Military Commissions Act to suspend habeas rights for alien detainees did not establish the pre-conditions required by the Constitution. Fifth, the existing procedures by which detainees can contest their detentions—Combat Status Review Tribunals—are not adequate substitutes for habeas. Accordingly, sixth, the relevant provisions of the Military Commissions Act are unconstitutional and Gitmo detainees may exercise their habeas rights in federal court.

Significantly, the Court did not resolve the question of whether habeas rights attach to alien detainees held outside the United States, other than Guantanamo. Neither did the Court indicate that specified detainees must now be released; nor did it address the effect, if any, of its ruling on military trials currently scheduled.

What, then, gives rise to the confusion and hyperbole surrounding the Boumediene opinion? In part, the problem can be traced to selective excerpts from dissenting opinions by Chief Justice John Roberts and Justice Antonin Scalia. Roberts, for example, wrote that the administration currently offers "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." Scalia was similarly blunt: "Today, for the first time in our nation's history, the court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war."

Both of those characterizations can be read to suggest, erroneously, that the Court has mandated changes to the procedures now extended to all alien detainees. In fact, the Court carved out a narrow exception, applicable only to Guantanamo because of its unique status under our treaty with Cuba. Although Cuba is the legal sovereign, the question whether U.S. territory is involved turns on "objective factors and practical concerns, not formalism," wrote Justice Kennedy. Traditionally, U.S. constitutional rights vest when the challenged governmental acts take place on U.S. territory.

Equally important, administration backers such as former Justice Department lawyer John Yoo argue, "A judge's view on how much 'proof' is needed to find that a 'suspect' is a terrorist will become the standard applied on the battlefield. Soldiers will have to gather 'evidence,'…take statements from 'witnesses,' and probably provide some kind of Miranda-style warning upon capture." That characterization is misleading on several fronts.

First, habeas is not about proof of war crimes or other terrorist acts, but about the designated status of detainees. They may be designated as lawful combatants (i.e., POWs), unlawful enemy combatants (e.g., al Qaeda), or innocent non-combatants. If innocent, they should be released. If POWs, they may not be interrogated and must be released when hostilities end. If unlawful combatants, they may be interrogated, then tried by military tribunal. Habeas rights are not extended to persons adjudicated to be enemy combatants; they are extended to persons accused of being enemy combatants but entitled, as a threshold matter, to dispute that accusation.

The criteria for unlawful combatant designations are straightforward: They do not wear uniforms or other insignia of a command structure, do not openly possess weapons, and will not commit to abide by internationally recognized laws of war. Those criteria were applied by screening tribunals during the Persian Gulf War: 1200 detainees were screened and more than 800 were released. The same process, if applied during the Iraq and Afghan wars, would have eliminated the need for the Supreme Court to resolve unchartered questions about habeas for alien detainees at Gitmo.

Second, Boumediene does not establish Gitmo habeas procedures—not for granting or conducting hearings, not for applying rules of evidence, not for defining the burden of proof. Perhaps the Court should have addressed those points, but it did not. The Court simply afforded a federal civil court remedy for unjustified detention. If Congress wants to establish reasonable rules, it may do so—just as Congress enacted the Uniform Code of Military Justice and approves the Federal Rules of Evidence. What Congress may not do is wait five years, then cave in to administration proposals that effectively pre-determine the outcome of detainee hearings in the government's favor.

Third, under the Geneva Conventions and Defense Department regulations, each detainee whose initial designation as an unlawful combatant is disputable has an opportunity to challenge that designation before a screening tribunal. The Boumediene case arose in the first instance because the Bush administration tried to circumvent those procedures. Instead of convening screening tribunals, the president unilaterally declared all of the detainees at Gitmo to be unlawful enemy combatants, thus entitled to little or no rights. Those declarations might have been correct for many of the detainees, but not all of them.

If President Bush had followed prescribed procedures, several Gitmo habeas cases over the past few years would never have been litigated—or would have been resolved in the administration's favor. In other words, this is a problem of the president's own making. Forty detainees have been held for more than six years without charges filed against them. Some detainees who deny being enemy combatants have never been given an opportunity to show their detention is unwarranted. To its credit, the Supreme Court has finally said "enough."

Robert A. Levy is senior fellow in constitutional studies at the Cato Institute and co-author of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.

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  1. If we are at war, the president has the power to declare anyone an enemy combatant and detain them until the war ends, in this case until terror surrenders.

  2. “Terror” is a person now?

  3. ed,

    Until Dr. Terror and his Minions of Mischief are stopped, no one is safe.

  4. The more I look at this the more I like it. It seems like part of our long evolution towards more individual rights, even extending those rights to noncitizens.

    Mostly, though, I’m just glad we live in times of such security that we can do things like this (seriously). We face no existential threats anymore. 9/11 was nothing compared to WW II or the Cold War. Let the good times roll!

  5. Yeah, this court decision is definitely saying we live in times of security and face no threats. I reached that exact same conclusion. I’m pretty sure, word for word, Kennedy even said something to the effect of “There aren’t even terrorists anymore.” Which I can take at face value.

  6. And J, you must be a big Lincoln fan.

  7. zoltan,

    I wouldn’t say no threats, but I would say no existential threats. There’s no Soviet Union pointing thousands of nuclear missiles at us, no Axis Powers devouring the world.

  8. Just remember, Terror never takes a holiday.

  9. J, you fool! Don’t you realize that the surrender ceremony is just a set-up for another attack by Terror?

    Terror takes off his sword, hands it to you, but wait, what’s that in the pom-BLAM!

    Just remember, Terror never takes a holiday.

    Terror is, however, negative on his sick time.

  10. I WW2, the war ended when the Japanese and Germans surrendered, so it follows logically that in the global war on terror, it will be over when terror surrenders.

  11. “Terror” is a person now?

    No, but it is the terrorists.

  12. no existential threats

    Je compte pour des prunes?

  13. In Scalia’s dissent, he fails to distinguish between actual foreign enemy soldiers ( for example, a person in WW II with a German Army Uniform on his body) and so many of the alien “combatants” at Gitmo, whose connections with “terrorist” organization, whether real or mostly mythical, are tenuous at best.

  14. No, but it is the terrorists.


    That was so close to being a sentence, and yet, so far away.

  15. Anthony Kennedy is Habeas Roger Brooke Taney

  16. J
    Are we likewise waiting for cancer to submit it’s terms for surrender in the war on cancer?

  17. This other J that has been posting around lately is really getting on my nerves.

  18. Being that I am, you know, apparently in complete disagreement with everything they say.

  19. Very well done. See the following letter to the WSJ in response to the Rifkin and Casey article (letter is as yet unpublished):

    To the Editor:

    The Messrs. Rivkin and Casey’s parade of horribles said to follow from the Supreme Court’s recent Boumedienne decision (“After Guantanamo”,July 2)should deceive no one. The case was not about prisoners of war; the detainees were accorded none of the rights such as the right of silence accorded prisoners of war. Nor did the decision relate to persons detained in areas outside what the Court called “the constant jurisdiction of the United States.” Finally, it related to persons detained for six years without a minimally fair administrative or judicial hearing that “would eliminate the need for habeas corpus review.”

    Even minimal efforts at basic fairness would have avoided the cascade of Supreme Court cases. Instead, at all stages, the Administration has elected to ‘push the envelope’ by pyramiding exceptions to fair procedures: personal exceptions, temporal exceptions, geographical exceptions. The cautionary advice of Colin Powell, William Taft IV and the armed services judge advocates general has been forsworn in favor of that of those valiant warriors Rivkin, Casey, Addington and Yoo. The courts, not surprisingly, have come to regard the executive ‘s claims of military expertise and necessity as lacking in credibility; what we have had is what a British critic of Chancellor Von Papen called ‘authoritarianism for authoritarianism’s sake.’

    No one should be subjected to the indefinite detention without periodic review that Rivkin and Casey would have Congress authorize. We do not do this to juveniles or to the insane. Only a pig-headed determination to pile disgrace upon disgrace can give rise to such proposals.


    8 West Hamilton Street
    Baltimore, Md. 21201
    410 752 5887

    The writer is the author of The Common Law Tradition: A Collective Portrait of Five Legal Scholars (Transaction Books, 2005)

  20. “This is a problem of the president’s own making.” I’ll agree to that! These terrorist should have had a trial within 30 days of capture and then hanged long ago! I have a simple solution for the future – – Don’t take any more prisoners, kill them all on the battle field. Save us all the time, money and BS! Nobody is going to miss any of them! And the world will be a better place!

  21. Talk about half truths. The author was very dishonest when he decried half truths, such as the belief that the ruling will require evidence gathering on the field of battle and mirandizing the prisoners. Then he admits that evidence will have to be gathered as a mere declaration by the president that a prisoner was a combatant was insufficient. So, what level of evidence will be required? Just leave it to Congress? Well, Congress passed a law. But, of course, that was under the pressure of the president. Duh???? Congress could have done nothing or passed a law not to the President’s liking. The author just did not like the results. Even worse, the author seemed to have forgotten previous Supreme Court decisions that treated combatants, both American and alien, as just that, combatants beyond the reach of the courts or the Constitution. The author seemed to have forgotten that hundreds of thousands of Axis POWs were held in exclusive U.S. jurisdiction both domestically and in foreign places. Americans were even executed for being unlawful combatants by military tribunals, not by regular courts martial. POWs who committed crimes were tried, sentence and excuted for crimes while in POW status. They did not get reviews by federal courts and the Supreme Court said they should not. How about Nuremburg trials? The prisoners were held in exclusive American custody and the Supreme Court said they had no rights under the Constitution. The author may enjoy this victory, but it is not based on history or the Constitution. It is just one man’s desire for a particular outcome, not based on any Constitutional tradition or scholarship.

  22. “Well, Congress passed a law. But, of course, that was under the pressure of the president. Duh???? Congress could have done nothing or passed a law not to the President’s liking.”

    I’ve got to say… I hate this line of reasoning. How does Bush have power to “pressure” anyone!? He’s got no political capital, no approval, everyone thinks he’s wrong, often people think he’s stupid and even fellow republicans have distanced themselves from him. So HOW exactly is he pressuring congress into writing laws that suit him??

    Isn’t it far more likely that congress is writing laws that support his positions because the majority of congressmen and senators actually WANT to write them?

    Obviously granting the president almost unlimited authority and granting the US government more and more (unconstitutional) powers is incredibly beneficial to all politicians across the board – so they have to feel some solidarity there. If you aspire to the presidency, and if you believe that government force is the solution to all problems, isn’t more power always going to be the right answer? No matter who is using it?

  23. Readers might also like to read my article “Justice Scalia’s Verdict”:


  24. “and so many of the alien “combatants” at Gitmo, whose connections with “terrorist” organization, whether real or mostly mythical, are tenuous at best.”

    Of the 420 or so freed, 50 have been recaptured fighting Americans after they had been freed at from Guantanamo.

    Yes, REAL tenuous.

    Look this stuff up before making broad generalizations based on one’s perceptions only.

  25. Finally an article on this blog site that actually approaches an issue from an adult perspective – unlike “J” and “Lifer.”

    If Bush didn’t like the habeus corpus laws, he could ask that the constitution be changed – he doesn’t have the authority or power to ignore the constitution. If he doesn’t like the FISA laws he should ask for them to be changed. If he thinks this is a new kind of war (it isn’t, terrorism started WW1 and has been used on and off for centuries), then he should have gone to the UN and asked for new articles for the Geneva convention while we still had support in the world.

    He did none of that – whether out of arrogance or impatience or just bad common sense, each law that he has tried to fight against or get that tool Yoo to argue against, was an opportunity for him to use his office to try to move the rule of law into the 21st century where these things can be debated out in the open – as in a democracy. Unfortunately he is so enamored with secrecy and a self-deluding view of his place in history, that he wasted these opportunities and set us back a decade to get a handle on terrorism as an issue in this world.

    Why McCain thinks he sounds any better by calling terrorism “the transcendental threat to this country” I don’t know. Terrorism can’t invade America and terrorists can’t make us lose our freedoms. Even if terrorists get nukes for a dirty bomb – the only real threat they have, it will be because we hurt our best weapon against it, the necessary international cooperation that we have had for decades post WW2, for what – 8 years of nationalistic joy riding?

    Hey “disgusted” so you trust the people at Gitmo who freed those terrorists, to also know who is innocent? You sound like someone who doesn’t worry about mistaken incarceration for yourself. I hope you are right.

  26. As a vet in the war on terror, I am absolutely stunned by Robert Levy’s ignorance in this article. He claimes we don’t need to worry about our courts being paralyzed by detainee appeals in a future major conflict (like WWII) because Boumediene v. Bush applies to Gitmo only! Are you serious?

    Well, if that is true, all the US has to do is build another prison on foreign land, move the detainees there, and then problem solved (or move them to a ship at sea). No more habeus corpus! Get real.

    For further info, you may want to look here.

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