BOUMEDIENE PART V: Scroll downwards for our earlier posts in this series. A quick recap:
(1) The Court rules that detainees have a constitutional right to the Write Habeas Corpus
(2) The writ extends to Guantanamo Bay;
(3) Scalia is full of it.
There's still one more question to address - Did Congress provide an adequate substitute for habeas corpus?
Quick background: In 2005, after heavy lobbying by the Bush administration, Congress passed the Detainee Treatment Act. The Act was a response to the Rasul decision, which held that the detainees had a statutory right to habeas corpus. Many lawsuits ensued.
The DTA took away the courts' ability to hear habeas corpus petitions. Instead, the detainees were left with Combat Status Review Tribunals (CRSTs). The CRST's are military panels charged with reviewing whether a detainee was an "enemy combatant."
The DTA did give the detainees a limited right to appeal to one federal court in Washington DC. The courts were empowered to hear only the following claims:
whether the status determination of the [CSRT] ... was consistent with the
standards and procedures specified by the Secretary of Defense ... and (ii) to
the extent the Constitution and laws of the United States are applicable,
whether the use of such standards and procedures to make the determination is
consistent with the Constitution and laws of the United States."
Is this close enough to habeas corpus? In the last part of his opinion, Kennedy concludes that it is not. As such, the majority strikes down this portion of the DTA. He rules that the detainees have the right, under the constitution, to seek the writ of habeas corpus (at least after their CRST), and have the federal courts review the legality of their detention.
(It bears mentioning that this opinion does not by itself release any of the detainees. It just allows them to file lawsuits in lower federal courts, which will then have to decide whether the detainees are entitled to be released).
Reading the section of the DTA above, one would think that Kennedy could reach this last conclusion without too much difficulty. Although he declines to define exactly what the right to habeas corpus includes, Kennedy lists several elements that seem to make sense. First, a court must be able to determine whether there was enough evidence at the CRST to find that the detainee was an enemy combatant. Second, the court must be able to determine whether the president has the legal authority, under the law and the constitution, to hold the detainee as enemy combatant for the duration of the "war on terror." Third, a court must be able to release the detainee if he is being illegally held for any of the first two reasons.
What's striking about the DTA, to our eyes, is that it does not appear to guarantee any of these rights. In other words, that all the government needs to do to win an appeal is to show that (1) it followed the rulebook for the CRST's, and that (2) those procedures in that rulebook did not violate the Constitution. Indeed, the right to appeal was even narrower than that, because the Supreme Court had (apparently) already addressed issue #2 in a 2004 case called Hamdi v. Rumsfield.
In short, the DTA doesn't seem to allow detainees much of an appeal right at all. And - that was exactly what Congress wanted. As Kennedy states:
To the extent any doubt remains about Congress' intent, the legislative history
confirms what the plain text strongly suggests: In passing the DTA Congress did
not intend to create a process that differs from traditional habeas corpus
process in name only. It intended to create a more limited procedure. See, e.g.,
151 Cong. Rec. S14263 (Dec. 21, 2005) (statement of Sen. Graham) (noting that
the DTA "extinguish[es] these habeas and other actions in order to effect a
transfer of jurisdiction over these cases to the DC Circuit Court" and agreeing
that the bill "create[s] in their place a very limited judicial review of
certain military administrative decisions"); id., at S14268 (statement of Sen.
Kyl) ("It is important to note that the limited judicial review authorized by
paragraphs 2 and 3 of subsection (e) [of DTA §1005] are not habeas-corpus
review. It is a limited judicial review of its own nature").
This should be an easy law to strike down. Unfortunately, Kennedy's opinion displays his well known tendency to Make Things Harder Than They Need To Be. In his opinion, Kennedy assumes that the DTA does guarantee all of these important rights listed above. To our eyes, these rights seem very difficult to tease out of this statute. (Incidentally, this idea of a broadly interpreted statute came from the government's lawyers, who probably decided that a broad DTA was better than no DTA).
In Kennedy's opinion, however, this is still not enough. Why? Because the DTA does not allow the courts to consider "newly discovered evidence" - that is, evidence discovered after the CSRT.
This is a bit unusual. After all, as Kennedy acknowledges, convicted criminal defendants (the people who account for most of the habeas petitions in this country) generally do not have the right to bring up newly discovered evidence in their habeas petitions.
So Kennedy offers another justification;
We do not imply DTA review would be a constitutionally sufficient replacement
for habeas corpus but for these limitations on the detainee's ability to present
exculpatory evidence. For even if it were possible, as a textual matter, to read into the statute each of the necessary procedures we have identified, we could not overlook the cumulative effect of our doing so. To hold that the detainees at Guantanamo may, under the DTA, challenge the President's legal authority to detain them, contest the CSRT's findings of fact, supplement the record on review with exculpatory evidence, and request an order of release would come close to reinstating the §2241 habeas corpus process Congress sought to deny them. The language of the statute, read in light of Congress' reasons for enacting it, cannot bear this interpretation.
We're a bit perplexed. Is Kennedy assuming that the necessary procedures are in the statute, or not?
NEXT: Roberts has a field day