Today’s ruling by the Supreme Court in Boumediene v. Bush delivered a dramatic blow to the President’s lawless detention policies and overturned an effort by the previous Congress to eliminate the centuries-old right of habeas corpus. The ruling means that prisoners at the US military base at Guantanámo Bay, who have been held for more than six years without charge, will finally have the opportunity to challenge the accusations against them in a court of law. More broadly, the ruling rejects the premise on which Guantánamo is based: that the President can create a lawless enclave simply by incarcerating people outside the mainland United States.
Boumediene marks the culmination of the quest for due process that began in 2002, when the first habeas corpus petitions were filed by Guantánamo detainees in federal court. In 2004, the Supreme Court ruled in Rasul v. Bush that the detainees had a right to habeas corpus under a statute that dated to the nation’s founding. The Administration, however, then sought to block any of the cases from going forward, arguing that the detainees had no rights to enforce beyond filing a piece of paper called “habeas corpus” and that any rights they did have were satisfied by the summary military proceedings it had hastily put in place after the Supreme Court’s decision.
Congress, in turn, twice tried to eliminate habeas rights for detainees. The Supreme Court rejected the first attempt in 2006, ruling in Hamdan v. Rumsfeld that the legislation did not apply to pending cases. So Congress tried again with the Military Commissions Act of 2006 (MCA), which made explicit that the elimination of habeas rights applied to all Guantánamo cases, past, present and future. The issue before the Supreme Court in Boumediene was whether the MCA violated the constitutional guarantee of habeas corpus, known as the “Suspension Clause.”
The first question the Court addressed in Boumediene was whether the Guantánamo detainees had a right to habeas corpus. The Administration had argued that because the prisoners were foreign nationals held outside the sovereign territory of the United States, they had no rights under the Constitution. As a result, the President and Congress were free to deny them any access to the courts at all.
The Supreme Court rejected this argument in no uncertain terms. As Justice Anthony M. Kennedy explained in his 5-4 opinion for the Court, formal constructs like “sovereignty” do not and cannot dictate the presence or absence of constitutional rights because they are “subject to manipulation by those whose power it is designed to restrain.”
Boumediene thus sounded a death-knell to the idea of Guantánamo itself: that the President can imprison people indefinitely without court review simply by bringing them to a US enclave on an island in the Caribbean. Instead, Kennedy’s opinion adopts a more flexible and pragmatic approach under which the Constitution’s applicability to those beyond America’s shores depends on a practical assessment of the circumstances. And under that approach, the application of fundamental constitutional rights at Guantánamo, where individuals have been detained for more than six years in territory under total US control, is a no-brainer.