I was wrong about habeas corpus (thank God!)

After the passage of the Military Commissions Act of 2006 (hereafter MCA), I wrote a long post analyzing the law and the major criticisms of it. I used the New York Times' harsh editorial "Rushing Off a Cliff," which called the MCA "a terrible deal on this legislation that gave Mr. Bush most of what he wanted," as a framework for analyzing the key issues. My conclusion was that, while the MCA had some major flaws, it represented an important step forward on the torture issue. Also, while I agreed with many of the Times' criticisms, I thought some of them were unfair (especially the claim that the MCA's broad provisions banning rape and sexual abuse were insufficient, an argument I have never heard anyone else make).

I struggled with the habeas corpus issue - personally, I thought extending habeas corpus to noncitizen detainees would help legitimize the system, without threatening important prosecutions too much, but the legal and political realist in me was not shocked that the MCA did not grant the right to noncitizens:

As for the habeas corpus issue, I do not think it was realistic to expect that the bill would grant habeas corpus to noncitizen detainees. Some observers assumed this was a "concession" by the Republican senators, but as discussed earlier, Graham has consistently said that he opposes habeas corpus for noncitizens. Moreover, only four of the nine Supreme Court justices have endorsed the view. And since Hamdi, Justice O'Connor, one of the four who supported habeas corpus for noncitizen detainees, has been replaced by Justice Alito, who holds an extremely broad view of executive power and has as an ultraconservative record on civil rights. Finally, the major historical cases involving the question, such as Eisentrager, have found that the Constitution does not grant habeas corpus to noncitizen enemy combatants.

For the above reasons, I do not know why Sen. Specter is so sure that the Court will strike the provisions denying noncitizens habeas corpus, but as chairman of the Senate Judiciary Committee, his opinion is worth listening to. Legal issues aside, my personal view is that granting habeas corpus to noncitizen enemy combatants would improve the legitimacy of the military commission system, and frankly, I do not believe that there is much of a risk of the American federal court system becoming a "Get out of jail free" card for dangerous terrorists.

In the wake of the Supreme Court's Boumediene decision last week, it turns out that Senator Specter was right. The Court acknowledged that this decision departed from earlier caselaw (and that precedent was the main reason I was skeptical that habeas would be extended to noncitizens), noting that this was the first time it had ruled that "noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution."

This decision is definitely a win for the rule of law, and a huge step towards restoring the country's image as a leader in human rights. That said, the ruling leaves some loose ends untied.

First, the Boumediene ruling did not hold that the Combatant Status Review Tribunals (CSRT's) or the military commissions are illegal - instead, the Court just extended the habeas writ to detainees under the administration of these tribunals. The ruling actually dealt with detainees who have been designated as "enemy combatants" by CSRT's, but who have not yet been brought before one of the military commissions set up by the MCA. However, since the central holding of the case is that the Constitution's habeas corpus right does extend to Guantanamo Bay (despite it being outside of the country's borders - much of the majority opinion involves an in-depth look at the use of the writ by England in Scotland, Canada, and other former territories), the twenty detainees who have been charged with crimes before military commissions at Guantanamo should be able to bring habeas challenges.

Second, the ruling does not mean that these detainees will be tried in American courts. It leaves open the possibility that Congress could create tribunals or military commissions which provide a constitutionally-sound alternative to habeas, but as a column at scotusblog points out, "as a matter of political reality, a Republican President with only six months left in office and historically low popular approval ratings, and a Democratic Congress that is less and less deferential to the Executive even on war-on-terrorism issues, very likely will not be able to agree in the short time realistically available to find an alternative to habeas that has any chance of surviving a court test."

So this story isn't over. But thankfully, the practice of detaining enemy combatants for years, without even telling them what they have been charged with, is now a thing of the past.

"Justices Say Detainees Can Seek Release" [Washington Post]
Boumediene v. Bush [scotus.gov]
"What are detainee's rights now?" [scotusblog]