43 New Eng. L. Rev. 37 (2008-2009)
In Boumediene v. Bush, 128 S. Ct. 2229 (2008), five members of the Supreme Court held that foreign prisoners at Guantanamo enjoy the constitutional privilege of habeas corpus; that their imprisonment had lasted too long for the Court to await completion of statutory review by lower courts of military tribunal findings that the prisoners were "enemy combatants"; and that the statutory judicial review was too deficient to substitute for the Great Writ.
Four Justices vigorously dissented. On the surface they differed on the history of the reach of the common law writ of habeas corpus, and on the procedural guarantees afforded by habeas, as compared to the new statutory procedures for judicial review.
More fundamentally, the controlling differences were on questions of constitutional priorities and separation of powers. In assessing judicial review of prolonged detentions at Guantanamo, which constitutional value matters more - liberty or security? Which is more at risk? And which branch - the judicial or one of the political branches - is more suited to making these judgments?
In assuring prisoners at Guantanamo access to habeas corpus, the majority extended a series of rulings in which the Court has defended individual liberty, judicial review of executive detentions, and ultimately the rule of law, against encroachments by an overzealous executive, joined in some cases by compliant congressional majorities.
But the battle is only half won. The majority left open critical substantive and procedural questions. For example: Is there any lawful basis for indefinite detention of persons captured outside traditional war zones? What is the government's burden of proof in a habeas case from Guantanamo? How should the courts handle hearsay, classified evidence, and evidence obtained by coercive means?
Although lower courts have subsequently begun to grapple with these questions, definitive answers may depend on the future composition of the Court - unless President-elect Obama fulfills his stated intention to close the prison at Guantanamo, in which event the issues may become moot, and this offense against the rule of law brought finally to an end.
Liberty, Judicial Review, and the Rule of Law at Guantanamo: A Battle Half Won,
43 New Eng. L. Rev. 37 (2008-2009).
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Reprinted with permission of the New England Law Review.