-Submitted by David Drumm (Nal), Guest Blogger
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.