Why <em>Boumediene</em> "Rights" Don't "Expire": A Response to Professor Kent

Readers probably won't be surprised that, as Professor Andrew Kent noted at the end of his guest post, I've already drafted a longer response to Andrew's important and provocative new essay, "Do Boumediene Rights Expire?" -- which should be published by "PENNumbra," the online companion to the University of Pennsylvania Law Review, later this month. I'll post the final version of that longer piece once I have it, but in the interim, I thought I'd write with a few shorter observations in response to Andrew's post from Saturday... Starting from our common ground, I think Andrew is absolutely correct on the waiver point--that inasmuch as the issues he raises implicate the jurisdiction of the federal courts, the federal government cannot simply "concede" that jurisdiction exists, and that the courts have an independent obligation to assure themselves of the same. That, to me, is undeniable, and I think Judge Lamberth probably had to do a little more work in his September 6 opinion in the MOU case to explain why he had jurisdiction to reach the question of the detainees' continuing right of access to counsel (and, through them, the courts). Where Andrew and I part company is over the relevance vel non of the fact that many of the Guantanamo detainees have now had their habeas petitions adjudicated on the merits, and either dismissed or denied. Andrew believes, as his post suggests, that these detainees may no longer have the right of access to the courts that Boumediene v. Bush recognized--in effect, that they've had their constitutionally required bite at the habeas apple, and that efforts to cut off their continuing access (whether by Congress or by the Executive Branch) are probably constitutional. As I explain below the fold, this argument fails to persuade. At bottom, the critical point is the Boumediene Court's holding that the Suspension Clause "has full effect" at Guantanamo, which must be taken at face value. To the extent that the Suspension Clause protects a detainee's ability to raise non-frivolous challenges to his continuing detention, the necessary consequence of that understanding is that the Suspension Clause protects the ability of detainees to bring second or successive claims, at least where those subsequent claims aren't frivolous. And although the Supreme Court has never squarely held as much, it has repeatedly alluded to the "serious constitutional questions" that would arise in the context of post-conviction habeas if statutes categorically barred detainees from bringing such petitions--including those that would give preclusive effect to the original merits adjudication. (Interested readers should check out Felker v. Turpin and Sanders v. United States, along with my previous post on the subject, on this point.) Professor Kent doesn't quibble with this jurisprudence. Instead, he suggests that the federal courts “would not seem to be foreclosed by the Boumediene decision or any strong policy arguments” from applying res judicata to detainee habeas claims. In other words, even if such claims may be constitutionally protected in the post-conviction context, the same may not follow for non-citizens subject to executive detention. But this turns Justice Kennedy's analysis in Boumediene (emphasis added) on its head:

Where a person is detained by executive order, rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing. A criminal conviction in the usual course occurs after a judicial hearing before a tribunal disinterested in the outcome and committed to procedures designed to ensure its own independence. These dynamics are not inherent in executive detention orders or executive review procedures. In this context the need for habeas corpus is more urgent. The intended duration of the detention and the reasons for it bear upon the precise scope of the inquiry.

Text aside, this distinction (between habeas to challenge executive detention and habeas to collaterally attack a criminal conviction) makes at least some sense: The question raised in a habeas petition is not just whether the challenged detention violates the petitioner's rights; it is whether the detention is lawful—a question that turns as much on the government’s underlying authority to detain as it does on any individual right to not be detained. In the post-conviction context, where habeas typically (albeit not always) seeks to challenge the legality of the underlying conviction and/or sentence, these questions merge--the government's authority to detain (the conviction/sentence), and the detainee's right not to be detained pursuant to a constitutionally infirm conviction/sentence, are usually two sides of the same coin. But these two queries can raise quite distinct questions in the executive detention context. Even if the government initially has the authority to subject an individual to long-term military detention, that authority might wane over time, either because of inherent (e.g., law-of-war) limits in the scope of the government's detention power, or because the detainee has rights under domestic or international law that ripen over time. At bottom, detainees should have at least as much of an opportunity to pursue second or successive claims in the executive detention context--if not a greater opportunity as compared to those seeking to challenge their underlying conviction. To that end, the Supreme Court has repeatedly recognized various situations in which the government has the authority to subject individuals (e.g., sex offenders; immigrants facing deportation; potentially dangerous criminal defendants pre-trial) to civil detention, but emphasized that such authority is circumscribed by a host of substantive and procedural due process limits--including temporal constraints. Does Professor Kent believe that, in those contexts, the Suspension Clause only protects the detainee's ability to object to their initial detention, and that once that adjudication has taken place, any continuing access to the courts can be foreclosed? One response, of course, is that the detainees in those contexts have something that the Guantanamo detainees don't--i.e., due process rights. This would be consistent with the above analysis, at least insofar as it might be taken as implying that any and all second or successive habeas claims by Guantanamo detainees would be frivolous. But the specific nature of the claim is not the point; so long as it's even possible that the government's authority to detain might wane over time (e.g., as hostilities "wind down" and ultimately terminate in Afghanistan), or that the detainees' rights under domestic or international law might ripen (e.g., if we implemented a security detention regime along the lines contemplated by the Fourth Geneva Convention), it seems to me that the distinction between these cases evaporates--and that Professor Kent would also have to argue against a constitutional right to file second or successive habeas petitions in those contexts, as well. Otherwise, the rule for which Professor Kent is arguing is that the "full effect" of the Suspension Clause means something else (and something less) at Guantanamo. And while that may be a perfectly attractive position to some as a normative matter, it simply can't be squared with Boumediene--as Chief Judge Lamberth correctly understood in his September 6 ruling in the MOU affair.