Eric Posner on Boumediene

Eric Posner (Chicago) has posted "Boumediene and the Uncertain March of Judicial Cosmopolitanism" on SSRN. From the abstract:

In Boumediene v. Bush, the Supreme Court held that noncitizens detained at Guantanamo Bay have the constitutional privilege of habeas corpus. The case can be given multiple interpretations, including a narrow reading under which it follows straightforwardly from Eisentrager. But Justice Kennedy's majority opinion omits consideration of a factor that plays a role in Eisentrager, namely, the limited constitutional status of the noncitizen. For this reason, the most distinctive element of Justice Kennedy's reasoning is its cosmopolitanism, not its libertarianism. The cosmopolitan elements of Boumediene recall the debate about the use of foreign law to interpret provisions of the U.S. Constitution, of which Justice Kennedy is a major proponent, and it is argued that critics of judicial cosmopolitanism should reject Boumediene as well.

Comments

[HowardGilbert]

Justice Kennedy delivers a history lesson. Common law Habeas was a power of judges on the Kings Bench to inquire into the legality of any detention. It enters the main body of the constitution as part of the "checks and balances." Specifically, Habeas is a power of the Article III branch to review and override actions of the Article II branch (or the states), and this power cannot be suspended by the Article I branch except in enumerated emergencies that do not apply to current affairs.

Americans like individual rights. That is what the Bill of Rights is all about. English common law is not always protective of individual rights. That is what the Declaration of Independence is all about. So one of the first things Congress did after the Constitution was adopted was to pass a statute surrounding the Habeas power with additional forms and procedures that turned it into an individual right. So for 225 years it did not matter if someone talked about an "individual right to Habeas" because such a right existed by statute.

However, when in the DTA and MCA Congress removed statutory protection from the detainees at Guantanamo, all that was left was Common Law Habeas mentioned in the constitution. That, as a power of the court, could not be suspended by Congress except as allowed in Article I. After nearly everyone argued before the Supreme Court about whether an imaginary "individual constitutional right to Habeas" extended to nonresident aliens in Guantanamo, Justice Kennedy ignored almost everything that anyone had said in any brief and pointed out that the issue before the court was trivial. Judges had routinely issued subpoenas, injunctions, and orders of protection to Guantanamo, and Habeas was just a court order like any of the others. A judge could issue Habeas to inquire about the detention of any human in US custody without the detainee having any right at all under the constitution.

Habeas asks if the detention is legal. Even without the constitution, a detention can be illegal if it violates an explicit statutory prohibition. Furthermore, following the logic from Hamdi to Hamdan I, when Congress provides no explicit authority for detaining enemy combatants under statute, the Executive may detain enemy combatants under the Laws of War (international common law covering armed conflict). However, as Hamdan then pointed out, if the only legal authority the Executive has is international common law, then the detention is subject to judicial review that applies international common law including Common Article 3 of the Geneva Conventions. [Whether that treaty is or isn't self executing, and whether it would or would not provide a cause of action in any other type of process.]

Kennedy then knocks down a straw-man. The CSRT with its limited rules about witnesses and evidence does not provide an adequate substitute for Habeas in the most egregious imaginable abuses of Executive authority that would fall within the Habeas stripping provisions of the DTA and MCA. Kennedy certainly insists that any of these extra judicial procedures must consitutionally be available to a District Court judge if he decides they are appropriate in a given case, but he does not in the decision mandate that any of them be used in any case, let alone insist that all of them be used in all cases.

Boumediene explicitly does not answer any of three questions: Whether the Writ should be issued in any case, whether any detainee enjoys any rights under the constitution, and what should be the form and rules for any judicial proceeding under Habeas. These questions are remanded to the District Courts. There may not be single answers to any of these questions. Each may be answered individually based on the facts and issues in each individual case.

Now reasonable people may argue that the Writ should issue in all cases, that the detainees should have constitutional rights, and that the Habeas proceedings should have discovery and lots of other usual judicial process. I do not argue otherwise here, except to note that Boumediene doesn't take a position one way or the other on any of these questions.

Justice Kennedy resolved this case by pointing out that a proper historical analysis rendered the question trivial (and mostly uninteresting). Obviously the real issues that people have been arguing about for seven years did not go away, and they will come back to the court again (and again). The court will continue to do what it has done for the last three generations of these cases, it will answer the question posed based on the narrowest possible construction and will avoid if at all possible answering any question of real significance.

Common law habeas is a judicial power that trivially extends to a naval base under exclusive US jurisdiction, and the rights or complete lack of rights of the prisoner are not relevant to the question of jurisdiction. International law may also play a part, if it forms the only authority under which the prisoners are detained, but again that is a question the court did not consider to decide Boumediene.

Not only is this not cosmopolitanism, it pretty much isn't anything about anything. It is a decision that says nothing. If you don't like the lack of answers, stop asking the wrong questions.