Boumediene v. Bush (2008)

-Submitted by David Drumm (Nal), Guest Blogger

Lakhmar Boumediene

Boumediene v. Bush was a 5-4 Supreme Court decision with the majority opinion written by Justice Kennedy. The case was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held at Guantánamo for six years.

Justice Kennedy, in the majority opinion, includes a lengthy history of the writ, noting the writ’s vulnerability to executive and legislative encroachments. He writes that the Suspension Clause was designed by the Founders to protect against these abuses:

[The Suspension Clause] ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate balance of governance” that is itself the surest safeguard of liberty. … The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account.

The separation-of-powers principle is cited numerous times in the Court’s opinion. The Court’s separation-of-powers concerns are just as valid for the Obama administration as for the Bush administration.

The Court also dealt with the President’s and Congress’s claim that, since Guantánamo was outside the sovereign territory of the United States, the Constitution did not apply. The Court left no doubt which branch gets to decide that issue:

The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.

In Murphy v. Ramsey (1885), the Court stated that when the United States government acts outside its borders, it is still subject “to such restrictions as are expressed in the Constitution.”

The principle, as determined in Boumediene v. Bush, that the writ is a meaningful judicial check on executive power has been steadily eroding, as pointed out in the New York Times editorial A Right Without a Remedy:

The United States Court of Appeals for the District of Columbia Circuit, the only circuit where detainees can challenge their detention, has dramatically restricted the Boumediene ruling. In its hands, habeas is no longer a remedy for the problem the Boumediene majority called “arbitrary and unlawful restraint.”

There is open disdain for the Boumediene v. Bush decision by several D.C. Circuit judges, most notably A. Raymond Randolph. In a speech entitled “The Guantanamo Mess” delivered at the Heritage Foundation, Randolph attacked the Supreme Court’s 2008 decision in Boumediene v. Bush. The highly political location of the speech is wholly inappropriate for an “impartial” judge. Randolph’s reliance on the Supreme Court’s 1950 decision in Johnson v. Eisentrager is without merit since the comments of Justice Jackson that Randolph quotes are dicta.

In Boumediene v. Bush, the Court held that “[p]etitioners have the constitutional privilege of habeas corpus.”

On May 15, 2009, Boumediene was transferred to France, where he has relatives.

At the 2011 Indiana Law Review Sympoisium, Amanda Tyler of George Washingto University Law School gave a presentation entitled: “The Counterfactual that Came to Pass: What If the Founders had Not Constitutionalized the Privilege of the Writ of Habeas Corpus?”

H/T: Center for Constitutional Rights, Concurring Opinions, Jonathan Hafetz, Stephen I. Vladeck.


12 thoughts on “Boumediene v. Bush (2008)”

  1. Great post Nal! The Great Writ is a citizens last hope for justice.
    Great story. Do you know if the film is available on DVD?
    Swarthmore Mom,
    Great link to the sad case from Louisiana. It unfortunately doesn’t surprise me because the Bush Supremes have no soul, not to mention a disdain for the facts.
    Thanks for the link to the Nation article.

  2. SwM,

    The “Cruel but Not Unusual” piece you linked was extremely sad reading. It’s one more piece in the Thomas/Scalia legacy that will certainly have future generations shaking their heads and asking, “How were these cretins allowed to remain on the court?”

  3. ” … when the United States government acts outside its borders, it is still subject “to such restrictions as are expressed in the Constitution.”

    No additional comment needed

  4. Here’s a living example of justice in the US: Dennis Edney, the Canadian lawyer for Omar Khadr, gave a powerful talk on Mar. 21 at the University of Ottawa, where he presented the case that Khadr has been pushed through a sham legal system devoid of any real justice.

    The event was sponsored by Amnesty International UO and a number of other campus groups, including the Student Federation of the University of Ottawa.
    Edney, who was appointed as a foreign attorney consultant by the US Pentagon, is well known for his participation in the legal defence of Omar Khadr at Guantanamo Bay in Cuba. Edney has argued his case in several US and Canadian courts, including the Supreme Court of Canada and the United States Supreme Court.

    Omar Khadr is accused of mortally wounding Sergeant First Class Christopher Speer during a 2002 firefight in Afghanistan when he was only 15 years old. Accused of five “war crime” charges, including murder, he has since been imprisoned in Guantanamo for nearly eight years. His defence lawyers describe him as a “child soldier,” who deserves protections as an innocent youth forced by his father Ahmed to participate in the war.

    Edney recently entered a guilty plea on behalf of Khadr, who was sentenced to an additional eight years in prison – not including time served – on Oct. 25, 2010. Under the plea deal, Khadr will spend another year in solitary confinement at Guantanamo, after which he could possibly be returned to Canada. However, Canadian authorities deny that he will be repatriated as part of the agreement.
    Khadr continues to be caged in a windowless, concrete cell, always shackled to the floor, with fluorescent lights on 24 hours a day. His cell is also purposely kept cold, a technique that is commonly used along with excess lighting to induce sleep deprivation.

    The evening began with a screening of You Don’t Like the Truth: 4 Days Inside Guantanamo, a documentary film about Khadr based on seven hours of surveillance camera footage recently declassified by the Canadian courts.
    The film, directed by Patricio Henriquez and Luc Côté, was the winner of the Special Jury Award at the Amsterdam International Documentary Festival. The festival’s jury called it “an important story. Its effective use of evidence, opinion and testimony, creates a provocative and moving story that reaches into the dark hole of our consciousness.”

    It also received the Grand Prix du jury Étudiant at the Festival des Droits de la Personne de Paris 2011, was a Genie Awards Finalist for Best Canadian Documentary, as well as a Jutra Awards Finalist for Best Quebec Documentary.
    You Don’t Like the Truth tells the story of Khadr’s detention at Guantanamo Bay after his capture by American forces in 2002. Specifically, it follows his forced interrogation by an unnamed CSIS agent and his CIA liaison, and the various ways he was exploited by the US and Canada for the purposes of intelligence.
    At the beginning of the film, Khadr is hopeful, but it soon becomes clear that his questioners want little more than for him to confess – even if this means lying – to Speer’s killing. The title of the film is a direct quote from Khadr, who consistently proclaims his innocence and maintains that his earlier confessions were obtained under torture.

    Upon realizing the CSIS agent is not there to help him, Khadr appears to lose hope, and when left alone in the interrogation room, he begins to cry for his mother, pull at his hair, and moan repeatedly, “kill me.” According to Gar Pardy, a former director general of Canadian Consular Affairs, “These interviews are basically a continuation of his torture.”

    The documentary includes numerous interviews with Canadian officials, Khadr’s laywers, past cellmates, psychiatrists, and former US soldier Damien Corsetti, who interrogated Khadr at the Bagram Airfield detention facility in Afghanistan. Based on his actions at Bagram, Corsetti was charged with dereliction of duty, maltreatment, assault, and performing an indecent act with another person, but was later found not guilty of all charges by a military jury in 2006.

    Nicknamed the “Monster” and the “King of Torture” at Bagram, Corsetti even had a tattoo across his stomach of the Italian word for monster. In the film, he regretfully admits that his actions with respect to Khadr were an “outrage to human dignity.”

    “I became that monster,” he recounts.

    Michelle Shephard, a Toronto Star reporter and author of Guantanamo’s Child: The Untold Story of Omar Khadr, makes the case in the film that photographic evidence proves that Khadr was so wounded in the firefight that he could not have thrown the grenade that killed Speer. Pictures show Khadr’s face down in rubble with gaping bullet holes and shrapnel wounds in his back and shoulder.
    After the film screening, Edney recounted many of his experiences as Khadr’s Canadian lawyer. He explained how despite his numerous successes in civilian courts, he was unable to escape the “legal black hole” that is the military tribunal process.

    “Guantanamo Bay is a place without rules,” he said.

    However, most of Edney’s scorn was directed specifically at the federal government of Prime Minister Stephen Harper, which according to a January 2010 Supreme Court ruling, has been complicit in the torture and human rights violations suffered by Khadr.

    “I’ve never before met anybody who has been so abused and so abandoned,” said Edney. “What greater betrayal can there be of Canadian values?”

    Edney is adamant in his belief that Khadr would not have received a fair trial, which is the ultimate rationale behind his decision to persuade Khadr to take the plea deal – even though he has never admitted to being a terrorist.

    The talk ended with a passionate plea to the youth in the audience. For Edney, the notion of universal human rights is not some grand ideal, but something that can be achieved in actual practice.

    “In my view, the story of Omar reflects the failure of civil institutions to act on his behalf,” he said. “But you are the leaders of the future. You will have to decide what values this country will live by… and you won’t do it by sitting in armchairs.” (find a

  5. In Al-Maqaleh v. Gates (605 F.3d 84), the DC circuit ruled that detainees at Bagram AFB (Afghanistan) did not have access to habeas under Boumediene, making Bagram the new Guantánamo. The reasoning was that Bagram was in a war zone, but this ignored the fact that some of the detainees were captured far from Afghanistan and moved there.

    A few months ago the Nation publised an interesting article on habeas in general that some readers might find worthwhile:

  6. I would think that even speaking at a partisan think-tank would be across the line for a judge. Is that unfair?

  7. Obama’s Supreme court appointments Sotomayor and Kagan are far superior to Roberts and Alito. Kagan was acting in her capacity as solicitor general.

  8. The Obama administration’s view of executive powers in the so-called War on Terror has proven to be even extreme than the views under Bush.

    If Obama were making another Supreme Court appointment tomorrow, what philosophy would he be looking for in a case like Boumediene? Wasn’t this the argument against Elena Kagan? If Boumadiene were heard today, would it have gone the other way?

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