Andrew Kent on the Expiration of Boumediene Rights

Andrew Kent in Lawfare (blog), November 03, 2012

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By Benjamin Wittes
Saturday, November 3, 2012 at 4:06 pm

Andrew Kent of Fordham University School of Law has a challenging new essay out on whether Boumediene rights expire–arguing provocatively that they do, notwithstanding government concessions in habeas litigation that they do not. I asked him to to summarize the argument in a guest post:

Many thanks for allowing me to post about an essay I just published, entitled “Do Boumediene Rights Expire?” Lawfare readers will remember the dispute a few months ago about whether counsel for Guantanamo detainees who have lost their habeas cases would be allowed to continue to access information and visit their clients on the same terms as during the pendency of their litigation (see posts by Ben, Steve, Wells)—a matter which as Steve noted this morning, may be headed for D.C. Circuit appeal.  In its brief filed about that issue, the DOJ stated that “the right to habeas review recognized in Boumediene” is not “extinguished” when a detainee loses his habeas case—that is, when the federal courts have confirmed that the detainee is, in fact and law, an enemy fighter who can be detained by the military.  My essay takes issue with this concession by the government.

First, my essay shows that access to the courts via habeas for Guantanamo detainees is a question of subject matter jurisdiction (as well as involving other issues like separation of powers and individual constitutional rights).  Because continuing court access concerns subject matter jurisdiction, federal courts have a duty to sua sponte inquire whether jurisdiction still exists, and the executive lacks the authority to waive the argument. This is not a special rule about Guantanamo or habeas; it’s how subject matter jurisdiction works in any federal case.

Second, my essay suggests that detainees confirmed by the federal courts in habeas cases to be enemy fighters may, under Boumediene v. Bush, lack a right to continue to access the courts in the future.   Before sketching this argument about expired Boumediene rights to court access, I should note why this issue is important. In short, as the conflict with Al Qaeda, the Taliban and associated forces continues to evolve, new challenges to detention will become possible and so detainees will want to bring a second round of habeas challenges. If the conflict with Al Qaeda and the Taliban winds down—either because of continued U.S. success in their killing leaders and members, and/or the future withdrawal of most U.S. forces from Afghanistan—detainees will want to argue that law-of-war principles (detention for the duration of the relevant conflict) cannot justify continued detention.  Even if the conflict does not end, the Court in Hamdi v. Rumsfeld contemplated that the justification for long-term detention might “unravel” at some point.  (For a fuller discussion of future legal challenges to detention, readers should check out Bobby’s new article.)

Notwithstanding the DOJ’s attempt to foreclose this issue, there is a solid (but not overwhelming) argument that Boumediene rights expire when a detainee loses his habeas case.  The context for this argument about the meaning of Boumediene is the fact that the rights Boumediene granted were both exceptional, that is exceptions from previous law and practice denying such rights for noncitizens abroad, and dynamic, meaning changeable over time as circumstances change.

Historically, the right to access U.S. courts and claim protection under U.S. law, including the Constitution, was limited by citizenship, territorial location and enemy status.  Enemy aliens (citizens or subjects of a nation at war with the United States), if they were located outside the United States, were barred from accessing U.S. courts during wartime.  And all aliens who were outside the United States lacked any rights under the U.S. Constitution.  Even if present in the United States, enemy fighters lacked any right to access U.S. courts and any individual rights under the Constitution.  (I support these propositions in detail in several previously published articles and a forthcoming one about Ex parte Quirin.)  As Justice Kennedy, the author of Boumediene, once put it, “the Constitution does not create . . . any juridical relation between our country and some undefined, limitless class of noncitizens who are beyond our territory.”

Boumediene was a watershed moment.  As the Boumediene Court noted, “before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution.”  The Court did not reject the relevance of citizenship, territorial location or enemy status to determining rights to court access or to individual constitutional rights.  But Boumediene did reject the old categorical, bright-line rules based on citizenship, territorial location and enemy status.  In its place, the Court substituted a multi-factor, non-exclusive test that evaluated a variety of things to determine whether a noncitizen outside the United States had a constitutional right to access U.S. courts via habeas corpus:

[W]e conclude that at least three factors are relevant in determining the reach of the Suspension Clause:  (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (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.

Note the dynamic nature of this test—all or almost all of these factors can change over time, meaning that, for noncitizens detained outside the sovereign territory of the United States, the right to access the courts could change over time as well.

When the detainees in 2007 went to the Supreme Court requesting a constitutional right to habeas corpus, they claimed to be innocent civilians who had been designated enemy fighters only through a flawed administrative review procedure.  That was their pre-Boumediene “status” and “process through which that status determination was made.”  Boumediene held that they had a constitutional right to have a federal habeas court evaluate their status—whether they were enemy fighters.  My new essay’s contention is that, after federal habeas courts found the detainees to be enemy fighters—after they had their day in court and lost—Boumediene may no longer provide them with any continuing right to court access because the “status” and “process” factors now cut against the detainees instead of cutting in their favor, as they did previously.

There are plausible counter-arguments to this.  My essay suggests some, and Steve Vladeck will soon be making others in print in a response to my essay.  In addition to arguments about the meaning of Boumediene, my essay notes some policy reasons why the Executive is probably wise to avoid stirring up the pot again about a “legal black hole” at Guantanamo.  But whichever way the policy considerations and merits legal arguments cut, I think it’s clear that, because subject matter jurisdiction is involved, the courts won’t be able to simply accept a concession by the executive that Boumediene granted rights to court access in perpetuity.