An Uber-Quick Analysis of Boumediene v. Bush

So the long-awaited case on the rights of enemy combatants held at Guantanamo Bay came down this morning, and it’s a doozy (in a number of different senses).  The overall vote was 5-4, with Justice Kennedy providing the swing vote for the prevailing Breyer-Ginsburg-Souter-Stevens block.  The syllabus alone is eight pages long, and together the main opinion by Justice Kennedy, the concurring opinion by Justice Souter, the dissent by Chief Justice Roberts, and the dissent by Justice Scalia take up 134 pages. I confess that I’ve only had time to read the syllabus today (which in turn only covers the main opinion) and there’s a whole lot of substance even there.  For now,  let me address, very, very briefly and at a very general level, what seem like the two most important points to come from the case.

1.     The determination of whether a particular set of detainees is covered by the Constitution’s Suspension Clause, which guarantees that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it,” is not made solely based on where the detainees were captured or are being held.  The Bush Administration had pushed for application of such a territoriality-based standard, but instead the Court decided that its precedents required adoption of a "functional approach."  The majority announced a three-factor test for determining whether the Suspension Clause applies to a group of detainees U.S.: courts must consider "(1) the detainees’ citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ."  Applying that test, the majority concluded that detainees held as enemy combatants at Guantanamo are covered by the Suspension Clause.

2.    The Court also determined that Congress has invalidly suspended access to writ as to the detainees because the the substitute legal process that Congress provided for the detainees -- an extremely government-friendly Combatant Status Review Tribunal and very circumscribed review of the CSRT determination in the D.C. Circuit Court of Appeals-- is no real substitute at all.  The majority concluded that

Petitioners have met their burden of establishing that the [review process] is, on its face, an inadequate substitute for habeas. Among the constitutional infirmities from which the [process] potentially suffers are the absence of provisions allowing petitioners to challenge the President’s authority ... to detain them indefinitely, to contest the CSRT’s findings of fact, to supplement the record on review with exculpatory evidence discovered after the CSRT proceedings, and to request release.

(All quotes are from the syllabus provided by the Clerk of the Court.)

I wish I had the time today to read all the opinions and begin to offer some more detailed discussion and analysis, but I'll get around to in the next few days.  In the meantime, there's lots of decent coverage of the decision out there, and if you have 15 or 20 minutes to spare you can read the syllabus (or, indeed, if you have the time and the inclination the actual opinions) here.