What Good Is Habeas?

Article excerpt

This essay examines empirically the effect of the Supreme Court's 2008 judgment in Boumediene v. Bush. Boumediene marked a sharp temporal break because it introduced a new regime of constitutionally mandated habeas jurisdiction for non-citizens detained as "enemy combatants" at Guantanamo. The Boumediene Court envisaged habeas jurisdiction as serving a twofold purpose. First, it claimed habeas vindicates physical liberty interests in line with a longstanding historical understanding of the writ. Second, the Court viewed habeas as a mechanism to generate or preserve legal boundaries on executive discretion. This essay gathers empirical evidence of the opinion's effect up to January 2010 to determine whether these goals were fulfilled. While the data is in many respects ambiguous, it suggests the effect of Boumediene on detention policy was not as significant as many believe. For example, less than four percent of releases from the Cuban base have followed a judicial order of release. Even in those cases, it is unclear if judicial action or something else caused release. Because the effects of habeas jurisdiction have been uncertain and perhaps marginal, effusive praise or blame of the Court's 2008 decision is premature.

**********

Few axioms of constitutional law seem more self-evident today than the proposition that the Great Writ of habeas corpus, as protected by the Suspension Clause, (1) is a "vital instrument for the protection of individual liberty." (2) Also largely common ground is the idea that habeas at its "historical core.., has served as a means of reviewing the legality of executive detention." (3) So understood, the habeas writ ranks as "an essential mechanism in the separation-of-powers scheme."' It is one of the "necessary constitutional means" vested by the Constitution's text in one branch "to resist encroachments of the others" as part of a "constant aim.., to divide and arrange the several offices in such a manner as that each may be a check on the other." (5) The integration of habeas into a larger account of the Constitution's separation-of-powers architecture played a prominent role in Justice Kennedy's recent majority opinion in Boumediene v. Bush, (6) which has been labeled "one of the most important Supreme Court decisions in recent years." (7) Even Boumediene's critics do not doubt habeas has policy consequences, although they profess to be "mystif[ied]" as to why a check on executive detention power is necessary.

This essay questions the conventional wisdom about habeas as a "check" on the executive branch. In Boumediene, the Supreme Court supplied a twofold normative justification for constitutional habeas jurisdiction: It first directly promotes physical liberty, and second reinforces the separation of powers by preserving a limited government via enforcement of unambiguous legal constraints on the executive branch. Using the aftermath of Boumediene as a case study, I argue that the resulting habeas jurisdiction has had at best a complex, largely indirect, effect on detention policy. In the end, the impact of habeas is far more ambiguous than either critics or supporters of Boumediene have recognized. Harsh criticism and extravagant praise of the Court should both be tempered in the teeth of persisting empirical uncertainty.

Empirical and doctrinal data for this essay are drawn from litigation and judicial opinions following the Supreme Court's Boumediene opinion. Boumediene concerned the scope of judicial supervision of detention operations at the Guantanamo Bay Naval Base in Cuba. Boumediene marked a temporal break because it introduced a new regime of constitutionally mandated habeas jurisdiction. Until June 12, 2008, there was doubt about the availability of habeas for non-citizens detained as "enemy combatants" at Guantanamo. It was "widely assumed that the Court would not intervene to invalidate executive action clearly authorized by statute that implicated military matters and foreign policy during a time of war. …