Objectors Take Note

The most significant objection I have seen or heard to the Boumediene v. Bush decision is that it extends habeas corpus protection to foreign lands, beyond the borders of the United States and into places we do not consider part of our own sovereign territory.

So, the argument goes, habeas corpus simply doesn’t apply in Guantánamo Bay because Guantanamo Bay is part of Cuba, not part of the United States. Therefore, the five Justices in the narrow majority of the Boumediene Court, led by Anthony Kennedy, are akin to traitors who want to help the terrorists detonate nuclear weapons in American cities. This last sentence is not only not that far removed from the criticism of the case, its roots are found in Justice Scalia’s alarmist and undignified dissent, which begins with a recital of the irrelevant facts of terrorist acts committed by people the military released from Guantánamo Bay on its own and without any judicial intervention at all, yet darkly intones at its conclusion, “The Nation will live to regret what the Court has done today.”

If that is your objection, then you should take note of another habeas corpus case, also decided yesterday. This case was decided by a unanimous Supreme Court, in an opinion written by Chief Justice Roberts. Munaf v. Green involved two American citizens (Munaf and Omar) who traveled to Iraq and there “committed crimes” — that is, became part of the insurgency against the Multinational Force (MNF) led by the United States to invade, occupy and pacify Iraq. Munaf and Omar were captured by American forces working under the aegis of the MNF, brought before military tribunals of the MNF staffed by American officers but located within Iraq, and then handed over to U.S. military forces as “enemy combatants.” When their military captors decided to turn them over to the Iraqi authorities for prosecution within the Iraqi criminal justice system, they both applied for the Great Writ to prevent the military from doing that.

One could argue that when a U.S. citizen takes up arms against the U.S. military, that person forfeits their U.S. citizenship. Indeed, many of the very same people now crying in outrage against Boumediene made precisely that argument in the case of Jose Padilla, a U.S. citizen accused of trying to plant a “dirty bomb” in some sort of affiliation with al-Qaeda, who was captured in Chicago, transported to Guantanamo Bay, and held without charged for several years.

But whether or not Munaf and Omar have rendered their citizenship forfeit, the point here is that the unanimous Munaf Court had no trouble at all with the idea that habeas corpus applied in a situation where someone was detained by U.S. forces in Iraq. Iraq is, both as a de facto and a de jure matter, less under the control of the United States than is Guantanamo Bay.

The habeas statute extends to American citizens held overseas by American forces operating subject to an American chain of command. The Government’s argument that the federal courts lack jurisdiction over the detainees’ habeas petitions in such circumstances because the American forces holding Omar and Munaf operate as part of a multinational force is rejected. … [¶] The Court also rejects the Government’s contention that the District Court lacks jurisdiction in these cases because the multinational character of the MNF–I … means that the MNF-I is not a United States entity subject to habeas.

Ultimately, the Court rejected the substantive petitions of Munaf and Omar, because the relief they requested — don’t release us to the Iraqi authorities — was not appropriate for a habeas petition in the first place. The remedy for a violation of the rights inherent in the writ of habeas corpus is release. But release is exactly what the petitioners here wanted to avoid. What they were really looking for was to evade Iraqi criminal justice. The unanimous Munaf Court held that a U.S. court has no power (at least under habeas corpus) to stop the sovereign nation of Iraq from enforcing its own criminal justice laws, even against U.S. citizens in U.S. custody overseas.

Now, I have no objection to the Court looking at the practical effects of the exercise of the habeas right in this case and saying, “Wait a minute, if we give you what you’re asking for that would leave you worse off than you are now,” and therefore denying the petition. I should hope the Court would do that sort of thing all the time. It’s easy in this case, because the habeas petition actually asks that the U.S. retain custody of these two prisoners, which is a bizarre twist on the way this right is exercised. The denial of the petitions here makes a great deal of sense. And it is also respectful of Iraqi sovereignty, another result which meets with my thorough approval. Whether Omar and Munaf violated Iraqi laws is a matter for the Iraqi courts to handle.

To sum up — the unanimous Munaf Court says that habeas corpus applies to U.S. military detentions in Iraq (but should not have been granted for prudential reasons), and a 5-4 majority in Boumediene says that habeas corpus applies to U.S. military detentions in Cuba. So if your objection is to the extension of habeas corpus rights to people held in U.S. military custody in areas beyond the de jure sovereignty but within the de facto control of America, then you must also object to Munaf.

The difference in the four switched votes seems to be based upon the effect of the habeas corpus right demanded in each case. For Roberts, Alito, Thomas, and Scalia, if the exercise of habeas corpus means a bad guy being held by us overseas might to free, then it shouldn’t apply. But when its exercise means we get to keep a bad guy being held by us overseas, then yes, the right does apply.

I submit that this reading of the right strips it of all meaning; indeed, it perverts the right such that habeas corpus would actually favor the arbitrary detention of individuals by the executive authority. Rights do not exist only when the government finds it convenient to tolerate their exercise. Indeed, the whole point of having a right is that it may be exercised and enforced despite the government’s objection.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.