Friday, 13 June 2008

Primer on US Supreme Court decision on Constitutional Rights in Guantanamo Bay

On June 12th the U.S. Supreme Court handed down its judgment in the combined cases of Boumediene v Bush and Al Odah v United States (judgment). By a majority of 5-4 the Court held, in a judgment written by Kennedy J., that the Constitutional protection of habeas corpus applied to those detained in Guantánamo Bay who, as a result, are entitled to take habeas petitions in federal district courts. The Court further held that the review mechanisms currently operating in the base (i.e. Combatant Status Review Tribunals with limited federal appeal) are not adequate alternatives to habeas corpus and therefore do not preclude habeas petitions. Given the significance of the decision an unusually lengthy post follows on the decision of the Court. interested parties are strongly advised to read also the concurring and dissenting opinions, all of which are spirited and reveal the extent to which the Court is fundamentally divided on the question of executive detention of those identified as terrorists by the Executive branch.

As an initial matter the Court held that Congress has successfully stripped federal courts of jurisdiction to hear habeas corpus petitions brought by detainees in Guantánamo Bay under the statutory habeas provisions. As a result, if the petitioners are to be entitled to bring any habeas claim it must be on the basis of the constitution. [Interestingly the Court did not consider whether there was any basis for bringing such a claim reliant on customary international law or international human rights law treaties, which might have also been a viable (although necessarily weaker) basis for finding in the petitioners’ favour. These international legal arguments were never presented to the Court by counsel for the petitioners, a decision that I criticise in an article forthcoming in the Israel Law Review and available in unformatted form here].

Article I(9)(2) of the U.S. Constitution, known as the Suspension Clause, provides that the privilege of habeas corpus may not be suspended except where invasion or security requires it. This has been interpreted as enshrining a right to habeas in the Constitution (Ex parte Bollman). The main argument proposed by the Government was that this constitutional provision did not apply to the petitioners because they were located outside of the territorial jurisdiction of the United States. this argument was refuted on two bases – firstly the importance of habeas corpus as one of the few rights protected in the US Constitution in its original form, i.e. before the Bill of Rights was introduced (a point I made in the ICLJ and Panoptica in 2007), and secondly the historical meaning of the writ as one that extended to every situation of effective sovereignty even in the absence of formal sovereignty. In an important passage, on p. 15, Kennedy J. holds:

“In our own system the Suspension Clause is designed to protect against these cyclical abuses. The Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary ill have a time-tested device, the writ, to maintain the “delicate balance of governance” that is itself the surest safeguard of liberty. See Hamdi, 542 U. S., at 536 (plurality opinion). 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 doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause.”


In the earlier case of Rasul v Bush Kennedy J. had indicated his belief that the Constitution might run to Guantánamo Bay because it was essentially an unincorporated territory of the United States. This reasoning, heavily influenced by The Insular Cases, arises in a much more central fashion in yesterday’s judgment. On pages 22 – 25 Kennedy J. held:

“Guantanamo Bay is not formally part of the United States… And under the terms of the lease between the United States and Cuba, Cuba retains “ultimate sovereignty” over the territory while the United States exercises “complete jurisdiction and control.”…Under the terms of the 1934 Treaty, however, Cuba effectively has no rights as a sovereign until the parties agree to modification of the 1903 Lease Agreement or the United States abandons the base…Accordingly, for purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory”.


Building on both of these bases Kennedy J. hands down an extremely strongly worded passage on the extra-territorial application of the US Constitution on p.p. 35-36 that at once constrains notions that the Executive can act with impunity provided it acts extra-territorially and asserts the right of the federal courts to ensure the effective separation of powers no matter where the state may be acting:

“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. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.”

Kennedy J. then goes on to identify the three key considerations in assessing whether the Constitutional right to habeas corpus applies in any particular instance of extra-territorial detention: (1) the citizenship and status of the detainee and the adequacy of the process by which a decision to detain was made, (2) the nature of the sites of apprehension and detention, (3) the practical difficulties involved in resolving the petitioner’s entitlement to the writ of habeas corpus (p.p. 36-37). By application of these criteria he held, at p. 41:

“It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding. We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. Cf. Hamdi, 542 U. S., at 564 (SCALIA, J., dissenting)”

Having held that the petitioners are entitled to habeas corpus or an adequate alternative the Court went on to consider the basic requirements of a review process in order to meet Constitutional requirements. Although Kennedy J. expressly states that the elements identified in the judgment are not exhaustive (p.p. 49-50) he outlines the following: (1) the review process must provide opportunity for the petitioner to make a meaningful case that his detention is unlawful, (2) the review body must have the capacity to order release although that is not the only remedy that might be provided in the occasion of a successful petition, (3) where a person is detained on the basis of executive, rather than court, order the review tribunal must be enabled to conduct a thorough and meaningful review in relation to whether due process has been accorded. In sum, he held, at p. 57:

“For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding.”

And, at p. 58:

“[W]hen the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release.”

The processes available to Guantanamo Bay detainees under the applicable statutes (i.e. Detainee Treatment Act 2005 and Military Commissions Act 2006) did not, the Court held, satisfy these requirements. The Court held that s. 7 of the Military Commissions Act 2006 is unconstitutional (p.66), and that the Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition (p. 66). In his closing passage Kennedy J. appears to try to placate those who will protest that this decision constitutes an unconscionable burden on the Executive in its attempts to secure the United States against the contemporary threat but nevertheless clearly asserts the Court’s conviction that it is entitled, if not obliged, to ensure that basic principles of the Rule of Law are maintained notwithstanding substantial security threats (p.p. 68-69). The passage, although lengthy, is worth quoting in full:

“In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches…Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security. Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not.

Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.

Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.

Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.”

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Monday, 3 December 2007

Guantanamo Bay in the US Supreme Court this week

This Wednesday the US Supreme Court will hear arguments in the consolidated cases of Al-Odah v United States and Boumediene v Bush. The applicants in both cases are claiming that the US Constitution applies to them even though they are non-citizens detained in an area that is, strictly speaking, outside of the territory of the United States.

The action is a result of s. 7 of the Military Commissions Act 2006 which strips federal courts of their statutory right to hear habeas corpus applications from Guantanamo Bay detainees. ‘Jurisdiction stripping’ statutes of this kind are quite common and allowable in United States law (see, for example, Janet Alexander’s excellent piece in the Stanford Journal of Civil Rights and Civil Liberties here), but do not on their own disturb the Constitutional protection for habeas corpus found in Article I(9)(2) of the Constitution (known as the ‘Suspension Clause’). By virtue of this provision Congress may only suspend the writ of habeas corpus in times of invasion or emergency where such suspension is required. It is now well established that express words of suspension ought to be used in order for an act of Congress to suspend the writ and those express words are not present in s. 7. Thus the major question for the Court to decide appears to be whether the Constitutional protection of the writ applies to aliens held outside the state.

The case is potentially the sternest challenge that the US Supreme Court has faced in the ‘War on Terrorism’ and the academic focus is mainly on (a) whether they will find that the constitution does apply [which seems quite likely]; and (b) on what basis they will reach this decision [will they use domestic legal argumentation only or will the justices have recourse to principles of extra-territoriality developed in international human rights law?].

The excellent SCOTUSblog has provided useful summaries of the issues here and the Supreme Court has pledged to make the audio recording of the case available quickly on Wednesday. Once it’s released, the audio ought to be available here.

UPDATE The MP3 of the oral hearing is now available here.

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Tuesday, 6 November 2007

Habeas Corpus Discussion

Regular readers may be interested in a discussion currently ongoing on IntLawGrrls between Naomi Norberg (U de Paris I), Diane Amann (UC Davis), Michelle Leighton (U San Fransisco) and Fiona de Londras (UCC) on habeas corpus in international human rights law. The discussion arose out President Musharraf’s invocation of Abraham Lincoln this weekend when he imposed emergency rule and suspended the constitution. The conversation considers the status of habeas corpus in international human rights law as an implicitly non-derogable right and considers what this means for both categories of human rights norms and for attempts to detain suspected terrorists without chare or trial or with significant delays between the time of arrest and the time of trial. The posts are numbered here sequentially – 1, 2, 3, 4, 5, 6

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Wednesday, 10 October 2007

Guantánamo Bay News

Two interesting developments in the US are worthy of note this morning.

First of all the Government has submitted a 74-page Merits Brief to the US Supreme Court in the Boumediene and Al Odah litigation, which concerns whether or not aliens detained in Guantánamo Bay have constitutional rights. According to the Brief there is a “long standing” constitutional rule that such detainees have no constitutional rights. It is unclear whether by this the Brief means that there is a rule that ‘enemy combatants’ have no such rights, or that ‘aliens’ have no such rights, or that people held in Guantánamo Bay have no such rights (or, indeed, all three). On either interpretation, however, the Brief can be rebutted. Firstly the mere status of ‘enemy combatant’ does not necessarily strip one of constitutional rights (Hamdi); secondly aliens who have a nexus to the US do have constitutional rights although they might not enjoy the full panoply thereof (INS v St Cyr); and thirdly Guantánamo Bay could be defined as an ‘unincorporated territory’ of the US resulting in constitutional rights for those detained there (The ‘Insular Cases’wiki with useful links). There are more expansive internationalist arguments to be made on the final point, but the Insular Cases offer a simple argument based on US precedent to immediately refute the ‘no rights’ claim.

The Brief goes on to argue that even if such detainees did have constitutional rights (and the right they are primarily seeking to exercise is the right to habeas corpus) those rights are not being breached. US constitutional jurisprudence clearly establishes that the constitutional right to habeas corpus can be satisfied by an “adequate alternative” and, according to the Brief, the Combatant Status Review Tribunals offer such an alternative.

The CSRTs were established by Congress in the Detainee Treatment Act but are marred by well-publicised criticisms including lack of equality of arms, admissibility of dubiously-acquired evidence, lack of adequate access to counsel etc that have been notably documented by Prof. Mark Denbeaux and a team of his students from Seton Hall Law School (reports collected here). Ultimately the US Supreme Court – if it finds constitutional rights (as seems likely) – will be required to consider the adequacy of the CSRTs.

The Brief, of course, contains argumentation on further points and can be accessed here, but the case promises to put the issue of constitutional habeas corpus front and centre (finally) in the ongoing Guantánamo litigation. A Reply brief is expected within a few weeks.

The second development of note is a decision in the District of Columbia District Court of Judge Gladys Kessler to block the transfer of a Guantánamo Bay detainee to Tunisia because of the fears that he would be subjected to torture there. The Court held that she would stay the transfer until the Supreme Court had clarified the rights of the Guantánamo Bay detainees.

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Friday, 28 September 2007

17th General Report of the Council for the Prevention of Torture (CPT)

The European Committee for the Prevention of Torture, Inhuman and Degrading Treatment and Punishment (COE) last week released its 17th Report on its General Activities in which secret detentions of suspected terrorists are a primary concern. The right to be free from arbitrary detention, which includes a right to challenge the lawfulness of detention, is provided for in Article 5 of the European Convention on Human Rights as well as in all other major international human rights treaties.

The Inter-American Court of Human Rights has held that the right to challenge the lawfulness of one's detention is a non-derogable right because of the risk posed to people held in detention, including the risk of being subjected to torture (Advisory Opinion on Habeas Corpus in Emergency Situations). The European Court of Human Rights has not to date expressly held that Article 5 rights have a similar non-derogable character, but the focus on detention in this report might suggest an attitudinal shift within the COE to that position. The following passage from the Preface of the Report is particularly interesting and echoes the UN Committee on Torture's conclusion last year that incommunicado detention in itself might be considered torture or inhuman and degrading treatment:

It is disturbing, at the beginning of the 21st century, to be obliged to recall basic principles long enshrined in both national and international law and which one had assumed would be inviolate. Deprivation of liberty must be based upon grounds and procedures established by law, be formally recorded, and be open to review by a judicial authority. Further, all persons deprived of their liberty by a public authority should be held in facilities which are officially recognised for this purpose and placed under the responsibility of a clearly identifiable entity. The practice of secret detention constitutes a complete repudiation of these principles.

Secret detention can certainly be considered to amount in itself to a form of ill-reatment, both for the person detained and for members of his or her family. Further, the removal of fundamental safeguards which secret detention entails - the lack of judicial control or of any other form of oversight by an external authority (such as the ICRC) and the absence of guarantees such as access to a lawyer - inevitably heightens the risk of resort to ill-treatment. And in the light of the information now in the public domain, there can be little doubt that the interrogation techniques applied in the CIA-run facilities concerned have led to violations of the prohibition of torture and inhuman or degrading treatment.

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