Boumediene's Uncertain Aftermath Commentary
Boumediene's Uncertain Aftermath
Edited by: Jeremiah Lee

JURIST Guest Columnist David Kaye of UCLA School of Law says that instead of the Supreme Court's habeas solution to the detentions problem in Boumediene v. Bush, Congress and President might better have engaged in a good faith legislative process to sketch out an appropriate and legally supportable detention system balancing the protections necessary for counter-terrorism purposes with well-established rights afforded combatants and civilians in armed conflict…


As is now widely known, the Supreme Court’s June 12 decision in Boumediene v. Bush held that detainees at the Guantanamo Bay, Cuba, Naval Facility (GTMO) have the right to challenge the basis of their detentions in federal district court via habeas corpus. Extraordinarily thoughtful and quick commentary has now clotted the internet arteries, so much so that several leading legal blogs and websites, especially Opinio Juris, Balkinization, SCOTUSblog and JURIST, are essential resources to get an overview of the decision itself and the key debates triggered by the Court’s dueling opinions and dissents. The reflections here merely touch upon in an informal way a few of Boumediene's implications.

In the period following the attacks of September 11, 2001, I served as a principal staff attorney at the State Department handling the law of armed conflict, also known as international humanitarian law (IHL). On September 12, lawyers in our office began to consider what was, for us, a basic question: under IHL, how should we characterize any individuals associated with those attacks who may fall into U.S. hands? Remarkably, the Government is still struggling with this question, having failed to answer it appropriately several months after 9/11. Nearly seven years after 9/11, and over six years since GTMO was established as a detention site for individuals picked up in Afghanistan and elsewhere in the “war on terror,” the Boumediene decision brings the issue once again to the fore, where it belongs. Still, as for the key questions raised by the decision — what next for the detainees and the future of the U.S. system of detention at Guantanamo Bay? — at this point we can only speculate on the answers.

Justice Anthony Kennedy’s majority opinion pointedly emphasized “that our opinion does not address the content of the law that governs petitioners’ detention. That,” he said, “is a matter yet to be determined.” (Slip. Op. at 69) Yet determining the content of the law, and making a “definitive judicial determination as to the legality of their detention,” (id.) will necessarily be at the heart of the habeas litigation that virtually all of the detainees held at Guantanamo are certain to launch in coming days and weeks.

The habeas process will provide ample sustenance for both federal court and public international law junkies. Law review ink will be sacrificed to the many problems and opportunities that Boumediene presents, but here are a few among the great many international law-oriented questions that one should expect to animate the coming litigation and legal debate:

  • Who may be lawfully held at Guantanamo?

    This question has both domestic and international law elements. Domestically, the Military Commissions Act of 2006 (MCA) defined an “unlawful enemy combatant,” a person subject to trial by military commission, as “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).” Section 948a, MCA. The MCA does not seek to define this term for detention purposes, nor does it purport to authorize detentions at GTMO. Indeed, Congress’ 2001 Authorization for Use of Military Force (AUMF) defined slightly differently the group against whom the President was authorized to use force, so two immediate questions are whether the category of persons listed in the MCA is coextensive with those who may be detained at Guantanamo and whether each detainee held at Guantanamo fits that category.

  • What rule applies to determine who is lawfully detained?

    International law can shape the answers to the questions posed to policymakers, but to what extent will the courts refer to that body of law? The most obvious place to look for rules determining the category of combatants subject to detention by the United States in war would be the Geneva Conventions of 1949, in particular the Third Convention on Prisoners of War and the Fourth Convention on the Protection of Civilians. Together, these treaties, to which the United States is a party, provide a framework for determining who may be subject to detention by military authorities in international armed conflicts. In 2002, the President made a blanket determination that, in effect, led to the conclusion that everyone held at Guantanamo fell outside the Geneva protections but could nonetheless be held for the duration of the “war on terror.” In rejecting Bush Administration arguments in 2006, the Court in Hamdan v. Rumsfeld held that, at a minimum, Common Article 3 of the Geneva Conventions — a provision that applies minimum humanitarian standards for conflicts “not of an international character” — applies to the conflict with al Qaeda However, Common Article 3 provides little if any guidance to courts (or the military) as to the key questions of the bases and permissible length of detention. The habeas process may re-open these decisions to scrutiny.

  • Are the Geneva Conventions an available source of law in federal habeas actions?

    It may very well be that the Geneva Conventions, or at least Common Article 3, provide the appropriate rule of decision, allowing a court to read into them rights detainees may have related to the fact and length of their confinement. However, Section 5 of the Military Commissions Act provides, “No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding . . . as a source of rights in any court of the United States . . .” Does Section 5 preclude the federal courts from applying the Geneva Conventions, including Common Article 3, to these cases? Did the Congress unconstitutionally attempt to constrain the federal courts from applying existing treaty law to which the United States is bound? (A superb argument on this issue may be found at the Boumediene amicus filing, Brief of Federal Courts and International Law Professors as Amici Curiae in Support of Petitioners (Geneva Enforceability), at http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-1195_PetitionerAmCuFedCtILawPr.pdf).

  • If the Geneva Conventions are unavailable in U.S. courts, may judges look to the customary international law of war, which largely tracks the Geneva Conventions, or international human rights law to determine the rights a detainee may have (for instance, to be free from arbitrary detention)?

    The Bush Administration and the conservative wing of the Court have pushed hard against the use of customary international law by federal courts. But if treaty law is taken out of the equation, the basis for d
    etaining combatants may be found in customary international humanitarian law, which may not differ substantially from the Geneva Conventions. Indeed, the Reagan Administration had acknowledged that several key provisions of the 1977 Additional Protocols to the Geneva Conventions, a treaty updating the 1949 Conventions which the United States has not joined, reflect customary IHL to which the U.S. Government is bound. One could thus imagine the habeas litigation becoming a fulcrum for the general debate over whether customary law may provide a rule of decision in federal courts. Moreover, customary IHL has been reviewed considerably by international criminal tribunals since the middle 1990s, such as the ones for the former Yugoslavia and Rwanda, and the results have tended to analyze IHL from a strongly human rights-oriented basis. In short, the effort to remove the treaties from federal court purview may undermine, rather than strengthen, Bush Administration arguments.

  • Will the courts challenge the Administration’s conclusion that the “war on terror” is an armed conflict for legal purposes, such that IHL applies?

    Will courts distinguish the armed conflict in Afghanistan from the Bush Administration’s worldwide conflict with al Qaeda (the one it relied on to justify detaining Algerians picked up in Bosnia, such as the Boumediene petitioners)? It would be surprising if federal courts were now to challenge the basic determination that the United States is in an armed conflict with al Qaeda, a construct unquestioned in Hamdan and widely (though not universally) supported in Washington (but opposed in Europe). At the same time, however, the Supreme Court has become involved in detention policies in this conflict to such an extent that it is impossible to exclude the possibility that even this fundamental issue may come under renewed scrutiny. If the courts head in this direction, one could imagine different rules for those captured in Afghanistan (a battlefield context) from those captured in, for example, Bosnia (a law enforcement context).

These questions merely skim the surface of the difficult legal issues federal courts will face in the upcoming habeas litigation. A better response than habeas would be for the Congress and President to engage in a good faith legislative process to sketch out an appropriate and legally supportable detention system, one that balances the protections necessary for counter-terrorism purposes and well-established rights afforded combatants and civilians in armed conflict. Unless the Administration and Congress can rise above election year politics, that kind of process, unseen since the terrible attacks of 9/11, will likely have to wait until next January.

David Kaye is executive director of the international human rights law program at UCLA School of Law and a longtime member of the American Society of International Law.
——–

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.