Opinio Juris

Perhaps the least persuasive part of the largely unpersuasive Boumediene opinion is its attempt to distinguish the most relevant and binding precedent on the subject: the Supreme Court's 1950 decision in Johnson v. Eisentrager.

In Boumediene, the Court effectively overruled Eisentrager's holding that enemy aliens cannot have the benefit of habeas corpus when held outside the territory of the United States. (This is not surprising, I suppose. In Hamdan, the Court essentially overruled Eisentrager's holding that the Geneva Conventions cannot serve as a basis for a remedy in a civilian proceeding.)

Justice Scalia's dissent, which probably went overboard in some parts, was absolutely right in its evisceration of the Court's analysis of Eisentrager (see pp. 10-13 of Scalia's dissent). The Court did not say it was overruling Eisentrager, but it is hard to see how it could have reached its decision today without doing so. Go ahead. Read Johnson v. Eisentrager and try to convince yourself that the denial of the writ to enemy aliens captured and held overseas during wartime was simply based on practical and functional considerations rather than on territoriality and citizenship.

Does it matter if the Court departs substantially from past precedent? Not to the many commentators (on this blog and elsewhere) who have hailed the decision. But even if one is happy with the result, one has to be worried about a judicial methodology that veers rather dramatically from precedent without admitting that it is doing so. Not only does this further undermine the legitimacy of the Court, but it makes it hard for future decisionmakers to know what is or is not legal? The Bush Administration and Congress can rightly complain that the Court has moved, and continues to move, the goalposts here.

It was totally reasonable for lawyers prior to Hamdan to believe that military commissions were statutorily authorized, the Geneva Conventions were not self-executing, and prior to Boumediene that the writ of habeas corpus and U.S. constitutional rights do not extend outside the territory of the United States to enemy aliens. Indeed, it would have been irresponsible for an attorney advising the President NOT to point out that the legal authority existed.

What now? The unacknowledged departure from precedent represented by Hamdan and Boumediene leave us in uncharted territory. A future decisionmaker has got to assume, and attorneys will have to advise him or her, that the writ of habeas corpus almost certainly extends to wherever the U.S. holds de facto control and where practical considerations do not forego extending the writ (the Green Zone in Iraq and Bagram, Afghanistan come to mind). Further, such attorneys should also advise that enemy combatants there enjoy the protection of at least the Fifth Amendment Due Process rights identified in Hamdi and probably others as well. Nor can congressional action limit or constrain the exercise of these rights in any meaningful way. The entire process of detaining enemy combatants is going to be crafted via a series of federal district court and appellate court decisions attempting to apply the murky judicial methodology the Court provided today (and which is probably going to change tomorrow). If I were in OLC, I would certainly recommend that the President and Congress assume they are totally bound by the Constitution overseas, unless or until the Court tells me otherwise.

Maybe this is all for the good, if all that matters is the result. But how we get to a result is a big part of the Court's legitimacy as a judicial (rather than a policy) decisionmaker. And the Court did itself no favors today on that front.

I haven't had time to come up with anything interesting or cogent about the expected but still disturbing result in Boumediene. And we have an all-star cast of guest-bloggers ready to comment, as Roger points out below. But as a place to begin, it is worth checking out Chief Justice Roberts' powerful conclusion to his dissent, which I think accurately characterizes the likely result of this decision: more muddle and more litigation.

So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases,
followed by further litigation before the D. C. Circuit— where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine— through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636 (2006) (BREYER, J., concurring), has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges. .