At the University of Minnesota Law School in 2018, Chief Justice John Roberts declared that the court “erred greatly” when it gave into political pressure and upheld the internment of Japanese Americans in the “shameful” decision Korematsu v. United States. The Court is at its best, said the Chief Justice, when it stands athwart political pressure.
One case unmentioned but nevertheless a viable candidate for the Court at its best is Boumediene v. Bush. 553 U.S. 723 (2008). In the fog of the War on Terror, the Court held the Suspension Clause applied to Guantanamo Bay and the weak procedures provided by Congress were an inadequate substitute to habeas corpus. The legal philosopher Ronald Dworkin, writing in the pages of the New York Review of Books, declared it “a great victory.” And it was. But now, the Supreme Court and D.C. Circuit have buried the effects of Boumediene, sending a once great victory into the graveyard of constitutional law. This short blog post will outline the key holdings of Boumediene, where they have been undermined and where they survive.
In 2006, Congress had passed the Detainee Treatment Act (DTA) which provided minimal procedures to Guantanamo detainees in the form Combatant Status Review Tribunals (CSRT), and the Military Commission Act (MCA) which stripped federal courts of habeas jurisdiction. Limited judicial review was granted to the D.C. Circuit, which could review whether the CSRTs complied with procedures promulgated by the Secretary of Defense. The plaintiffs in Boumediene challenged these laws under the Suspension Clause in Article I, Section 2 of the Constitution, which reads: “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.”
The Boumediene Court addressed the case in two steps. Step 1 asked the threshold question of whether the Suspension Clause extended to Guantanamo Bay. Step 2 asked whether the CSRTs and limited D.C. Circuit review constituted an “adequate substitute” to habeas corpus. The Court answered “Yes” on Step 1 and “No” on Step 2. In doing so, Boumediene left two legacies: a functional approach to extraterritoriality and a robust interpretation of the Suspension Clause.
The Court, in extending the Suspension Clause to Guantanamo Bay, rejected a formalist interpretation of the Clause’s reach. Justice Kennedy, writing for the majority, applied a functional test, asking, in part, whether the extension of the Suspension Clause would be “impracticable and anomalous.” Prior cases had sharply limited the application of the Constitution to the de jure territoriality sovereignty of the United States or to plaintiffs with significant voluntary connections to it. It was under the guidance of these cases that the Bush Administration chose Guantanamo Bay, where the government could be unburdened by constitutional concerns. After all, Guantanamo detainees had no voluntary connections to the United States, and Guantanamo Bay, located in Cuba, was outside the de jure sovereignty of the United States.
The Boumediene court rejected this manipulation and held the U.S. exercised de facto control over Guantanamo Bay and applying the Suspension Clause to it would not present any practical concerns. The hope was that the “impracticable and anomalous” test would spread beyond the Suspension Clause, and the government could not shed its constitutional duties by traveling abroad.
This hope was quickly dampened. There are a number of cases to note, but two are warrant special consideration. In Alliance for Open Society, a case seeking to extend the First Amendment abroad, the Court declared: “[I]t is long settled as a matter of American constitutional law that foreign citizens outside U. S. territory do not possess rights under the U.S. Constitution.” 140 S. Ct. 2082, 2086 (2020). This proposition, while not formally overruling Boumediene, revived a formalist, line-drawing approach to extraterritoriality.
It was in the spirit of Alliance, and not Boumediene, that this past August the D.C. Circuit shut the door on the application of procedural or substantive due process rights for Guantanamo detainees in Al Hela v. Trump. 972 F.3d 120 (2020). There, the D.C. Circuit, citing Alliance, went out of their way to hold that the Fifth Amendment does not apply at Guantanamo Bay. Without the co-extension of the Due Process Clause, the lasting effect of Boumediene’s strong interpretation of the Suspension Clause is considerably weakened.
The functional “impracticable and anomalous” test still applies when analyzing the reach of the Suspension Clause. And areas where the U.S. exercises de facto sovereignty – like Guantanamo Bay – are “U.S. territory,” meaning the Alliance rule does not apply. But these are small echoes for such a great case.
The second key holding of Boumediene was its robust interpretation of the Suspension Clause. Decided in 2020, Department of Homeland Security v. Thuraissigiam is the first case interpreting the Suspension Clause after Boumediene. 140 S. Ct. 1959 (2020). In Thuraissigiam, the Court held that expediated removal procedures limiting judicial review for migrants did not violate the Suspension Clause because the plaintiff – a man seeking asylum – did not seek release but additional procedure.
There is much to be said about how Thuraissigiam affected Boumediene from its originalism to the misinterpretation of the writ in immigration cases. But one important implication of the case is its conception of the purpose of habeas corpus.
The interpretation of the history of habeas corpus and the current case law is split between two conceptions of habeas: a rights-centric view and a power-skeptical view. The power-skeptical view focuses an analysis of the Suspension Clause on the jailer – not the jailed. It questions the power of judiciary to review the “legality of the exercise of executive power,” as Justice Sotomayor put it in her dissent. Under this interpretation, the expediated removal procedures are unconstitutional for barring judicial inquiry into the legality of expeditated deportation orders.
On the other hand, a rights-centric view focuses on the jailed, not the jailer. It looks to the plaintiff’s (lack of) constitutional rights, not the legality of the Executive’s actions. But standing alone, those subject to Executive detention, whether the alleged enemy combatants in Boumediene or recently arrived migrants in Thuraissigiam, are likely to have little claim to constitutional right. A rights-centric Suspension Clause is a weak Suspension Clause.
Boumediene embraced the power-skeptical view. The majority proclaimed: “The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches.” But the Court in Thuraissigiam undermined this power-skeptical view by concentrating solely on the plaintiff’s lack of right instead of the illegality of the Executive’s action.
Some hope remains for Boumediene. The Boumediene court held “at an absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.’” The Court in Thuraissigiam, seizing on an apparent concession in a footnote in the plaintiff’s brief, analyzed the writ only as it existed in 1789. Future plaintiffs may be able to make claims based on post-1789 developments in the Suspension Clause jurisprudence. How the current court will handle those arguments – and whether Boumediene can be resurrected – remains to be seen.
*J.D. Candidate, 2021.