Boumediene deserves about a dozen posts, but here’s my initial take — the opinion is legal realism made flesh. Legal text and doctrine didn’t determine the Justices’ votes today— outside considerations of policy and politics did. And as I’ll explain, that’s not necessarily a bad thing (indeed, it was probably unavoidable).
To me, the most interesting question — and the crux of the whole decision — was the sufficiency of D.C. Circuit’s ability to review the Combatant Status Review Tribunals (i.e., the “courts” that determine if you’re an “enemy combatant”). Because Roberts’ dissent focuses on this issue in detail, he comes closest to obliterating the majority’s logical foundation.
To back up, there are really two separate procedures at issue here. The first is the CSRTs themselves that make the initial enemy combatant classification (they are not Article III courts). The second is the appellate review of those classifications. Regarding the latter, Congress (in the DTA and MCA) provided for a limited appellate review of the CSRTs by the illustrious D.C. Circuit alone. By law, the court can only determine (1) whether the CSRTs followed the President’s designated standards and procedures, and (2) whether “the use of such standards . . . is consistent with the Constitution and laws of the United States.”
That last part is crucial. If the D.C. Circuit review provides sufficient protections, then it’s a valid “substitute” for habeas. (Habeas, after all, is just a procedure to vindicate other rights). If it’s not, then Congress has unconstitutionally “suspended” habeas corpus.
And on this question, Roberts’ argument seems pretty persuasive at first glance. He explains that if there are constitutional problems with the CSRT procedures, then the D.C. Circuit gets the first crack at them. What’s more, the D.C. Circuit by the very terms of the statute is free to reach the same conclusion that the Court did. There’s nothing, Roberts says, that the Court held today that the D.C. Circuit couldn’t have held. Thus, the Court is jumping the gun, throwing out a statute before the D.C. Circuit has considered any procedural challenges.
To repeat, the million dollar question is whether the D.C. Circuit could provide any relief that the detainees would be constitutionally entitled to.
The Court ultimately answered "no" — i.e., it held that the D.C. Circuit’s constitutional review was unconstitutionally narrow. That conclusion, however, seems hard to square with the language of the statute. As Roberts explained, the D.C. Circuit was explicitly authorized to review the constitutionality of the procedures.
On a purely abstract level, I think Roberts gets the best of this argument. But that said, I still think he was ultimately wrong, largely because of real-world considerations.
Let’s be honest — the Court today was basically saying “enough already.” The detention has dragged on for years (with years apparently to go), and it’s clear that another remand would add more unnecessary years to an already grotesquely long, embarrassing, and interminable process.
What’s more, the Court had grown disillusioned with the players involved. As Marty Lederman astutely predicted a while back, the Bismullah case was probably the Court’s last straw. As Lederman explains, that case illustrated both that the Bush administration was going to drag things out forever AND that the D.C. Circuit was useless. The Court was unwilling to send such an important matter back (again) to be determined by this band of jokers.
In addition, I think policy considerations heavily informed their analysis (even their textual analysis). For instance, the majority apparently thought the suspension clause should be construed narrowly in light of the broader textual context. Suspension, remember, is an exceedingly narrow exception to an expansive right, and it should be read that way. For the same reason, the opinion implied that efforts to evade habeas (executive efforts) should be met with heightened scrutiny. I mean, the whole purpose of moving the detainees to Gitmo was to evade the Constitution. The Court’s analysis wasn’t blind to these realities.
Admittedly, today’s decision was not compelled by text or precedent. But the mere fact that policy and pragmatism played a role today doesn’t make the case wrongly-decided. Courts do this stuff all the time — if parties are playing games in litigation, courts take steps to limit it. It’s exactly what happened in the Warren Court’s race cases — the Court refused to play the role of useful idiot by ignoring the outside world any longer.
And today, the outside world mattered. Rather than ignoring the obvious fact that most constitutional decisions are determined in such ways, let’s instead stipulate to the obvious and have a old-fashioned political debate about it. Personally, I think it’s ok to construe habeas rights broadly given that the entire point of habeas is to limit unlawful executive detention. Likewise, I think it’s ok for judges — after seeing parties drag things out for years and ignore the spirit of their rulings — to step in more assertively.
Before I finish, it’s worth noting a few things about both Roberts and Scalia’s dissent. As I’ve said, I think Roberts’ argument about the D.C. Circuit is quite strong. He should have left it at that. Instead, he went out of his way to explain why the kangaroo CSRTs are actually the most generous civil rights protections since the Magna Carta. It’s an absurd, hackish argument and it really undermined his credibility. I mean, Roberts is a smart guy — and he may well have had the best argument today. But he let his politics get the best of him at times.
As for Scalia, good lord. Putting aside his opening Malkin-like “Islamist” rant (yes, he actually used that word), most of his argument was about how Gitmo should be considered foreign soil. That view requires completely ignoring the reality of our little arrangement with our good buddy Cuba. In any event, it’s a further sign that he lets politics and petty anti-liberal rage consume him in socially-charged constitutional cases.