Most importantly, the Court strongly implies that if, as in this case, the government chooses a foreign detention facility for the very purpose of avoiding judicial review (or perhaps even if the military retains a prisoner at a battlefield locale for the same reason), the Court will not look kindly upon such efforts. As I noted below, I believe the single most important sentence in the opinion might be this one: "The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain." The political branches will not be permitted "to govern without legal constraint" or to "have the power to switch the Constitution on or off at will" . . . .
Answering the same question, the Obama Justice Department said YES (PDF), the government CAN "choose[] a foreign detention facility for the very purpose of avoiding judicial review." I quote from the Justice Department brief:
Boumediene . . . rested significantly on the Supreme Court’s finding that the United States exercises de facto sovereignty over Guantanamo Bay and its conclusion that “[i]n every practical sense Guantanamo is not abroad.” See Boumediene, 128 S. Ct. at 2258-59, 2261. Bagram, in contrast, is in a theater of war on a foreign territory over which the United States has neither de jure nor de facto sovereignty and at which the United States is answerable to the host nation for its acts.
(Emphasis supplied.) To be sure, the Justice Department perfunctorily argued:
There is no allegation here that,
prior to their detention, the petitioners were apprehended or held in a location where judicial
review by an Article III court would have been available. These cases therefore do not raise the prospect that the political branches have sought to “switch the Constitution on or off at will” by manipulating petitioners’ place of detention. Boumediene, 128 S. Ct. at 2259.
(Emphasis supplied.) There actually are such allegations that the detention location was predicated on avoiding granting habeas rights. And that allegation is best heard in an Article III court.
Moreover, this avoids the central question - to wit, whether the captures occurred in a "theater of war." The Justice Department brief argues:
[T]his Court relied on the Supreme Court’s separation-of-powers discussion in
Boumediene in emphasizing for jurisdictional purposes the significance of the “site of
apprehension.” Boumediene, 128 S. Ct. at 2259. A substantial difference in opinion exists regarding whether, under Boumediene, the place of capture has any import where the petitioner was not apprehended on U.S. soil.
I want to make it clear that I do not find the arguments raised in the Justice Department brief unreasonable or beyond the pale. I do think they are wrong as a question of constitutional law.
More importantly to me, they run counter to what I would like to see from the Obama Justice Department, as a matter of policy, and run counter to what we heard from President Obama. Attorney General Holder and Obama OLC attorney Marty Lederman when they discussed these same issues with regard to Bush Justice Department policy.
So, I ask again, what would Marty Lederman do?
Speaking for me only
