First Thoughts on Boumediene

There’s much fulminating in the dissents about the court usurping the judgment of the political branches, accompanied with the contention (particularly forcefully asserted in Scalia’s dissent) that the court’s recognition of habeas rights creates a grave security threat to the nation. But it’s worth recalling one basic fact about this whole litigation: The government of the United States (neither the president nor the Congress) has never argued that the writ of habeas corpus should actually be suspended, something the Constitution permits so long as the constitutional standard for doing so is met. As the Constitution says, “The 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.” Instead, the government has argued only that habeas does not apply to these detainees because of who and where they are and that, even if habeas does apply, the current statutes provide an adequate substitute for it. The court, of course, has now rejected both of those arguments.

But if, in the view of the political branches, the public safety really precludes the modest increment of additional process that constitutional habeas now requires in the eyes of the court, nothing prevents the political branches from arguing that the writ should actually be suspended and then passing legislation to suspend it. That the political branches have not to this point seen fit to do so—and that there is not and has not yet been the political support in Congress for such a suspension (putting aside the separate question whether the court would conclude that such a statutory suspension meets the constitutional requirements for suspension)—goes some distance in my view in undermining the contention that the court has somehow usurped the power of the political branches to protect the public safety. All we now know is that the political branches have consistently avoided claiming a power to suspend, concluding instead, wrongly, that habeas did not apply to these detainees and that the newly constructed process for reviewing their detentions would be enough to satsify the constitutional guarantee of habeas.