Significantly, the Court did not resolve the question of whether habeas rights attach to alien detainees held outside the United States, other than Guantanamo. Neither did the Court indicate that specified detainees must now be released; nor did it address the effect, if any, of its ruling on military trials currently scheduled.
What, then, gives rise to the confusion and hyperbole surrounding the Boumediene opinion? In part, the problem can be traced to selective excerpts from dissenting opinions by Chief Justice John Roberts and Justice Antonin Scalia. Roberts, for example, wrote that the administration currently offers “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” Scalia was similarly blunt: “Today, for the first time in our nation’s history, the court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.”
Both of those characterizations can be read to suggest, erroneously, that the Court has mandated changes to the procedures now extended to all alien detainees. In fact, the Court carved out a narrow exception, applicable only to Guantanamo because of its unique status under our treaty with Cuba. Although Cuba is the legal sovereign, the question whether U.S. territory is involved turns on “objective factors and practical concerns, not formalism,” wrote Justice Kennedy. Traditionally, U.S. constitutional rights vest when the challenged governmental acts take place on U.S. territory.
Equally important, administration backers such as former Justice Department lawyer John Yoo argue, “A judge’s view on how much ‘proof’ is needed to find that a ‘suspect’ is a terrorist will become the standard applied on the battlefield. Soldiers will have to gather ‘evidence,’…take statements from ‘witnesses,’ and probably provide some kind of Miranda‐style warning upon capture.” That characterization is misleading on several fronts.
First, habeas is not about proof of war crimes or other terrorist acts, but about the designated status of detainees. They may be designated as lawful combatants (i.e., POWs), unlawful enemy combatants (e.g., al Qaeda), or innocent non‐combatants. If innocent, they should be released. If POWs, they may not be interrogated and must be released when hostilities end. If unlawful combatants, they may be interrogated, then tried by military tribunal. Habeas rights are not extended to persons adjudicated to be enemy combatants; they are extended to persons accused of being enemy combatants but entitled, as a threshold matter, to dispute that accusation.
The criteria for unlawful combatant designations are straightforward: They do not wear uniforms or other insignia of a command structure, do not openly possess weapons, and will not commit to abide by internationally recognized laws of war. Those criteria were applied by screening tribunals during the Persian Gulf War: 1200 detainees were screened and more than 800 were released. The same process, if applied during the Iraq and Afghan wars, would have eliminated the need for the Supreme Court to resolve unchartered questions about habeas for alien detainees at Gitmo.
Second, Boumediene does not establish Gitmo habeas procedures—not for granting or conducting hearings, not for applying rules of evidence, not for defining the burden of proof. Perhaps the Court should have addressed those points, but it did not. The Court simply afforded a federal civil court remedy for unjustified detention. If Congress wants to establish reasonable rules, it may do so—just as Congress enacted the Uniform Code of Military Justice and approves the Federal Rules of Evidence. What Congress may not do is wait five years, then cave in to administration proposals that effectively pre‐determine the outcome of detainee hearings in the government’s favor.
Third, under the Geneva Conventions and Defense Department regulations, each detainee whose initial designation as an unlawful combatant is disputable has an opportunity to challenge that designation before a screening tribunal. The Boumediene case arose in the first instance because the Bush administration tried to circumvent those procedures. Instead of convening screening tribunals, the president unilaterally declared all of the detainees at Gitmo to be unlawful enemy combatants, thus entitled to little or no rights. Those declarations might have been correct for many of the detainees, but not all of them.
If President Bush had followed prescribed procedures, several Gitmo habeas cases over the past few years would never have been litigated—or would have been resolved in the administration’s favor. In other words, this is a problem of the president’s own making. Forty detainees have been held for more than six years without charges filed against them. Some detainees who deny being enemy combatants have never been given an opportunity to show their detention is unwarranted. To its credit, the Supreme Court has finally said “enough.”