Five years ago today, the Supreme Court handed down its 5-4 decision in Boumediene v. Bush, holding that the Constitution's Suspension Clause "has full effect" at Guantánamo Bay, and that the review scheme provided by the Detainee Treatment Act of 2005 was an inadequate substitute for the judicial review thus required by the Constitution. Boumediene thereby ushered in the flood of habeas litigation that has been such a jobs program for, among others, many of those who write for this blog.
On its fifth anniversary, it's tempting to revisit the interminable debate over why the Supreme Court's decision hasn't had a more decisive impact in helping to close Guantánamo--and why 166 men remain detained there today (both of which probably have a lot to do with the lack of attention otherwise being paid to this date). But I thought I'd offer a somewhat different reflection--which is to remind ourselves of what the alternative was...
At its core, the Bush Administration's argument to the Supreme Court in Boumediene was not just that the political branches have the power to hold individuals without charge for a potentially indefinite period based on a sweeping interpretation of the scope of the AUMF, but that they have the power to cut the courts out of the loop, in the process (thereby insulating the Executive Branch's reading of the AUMF from any scrutiny). True, the government's brief also made the alternative argument that the DTA satisfied the Suspension Clause, but the crux of their argument was that courts had absolutely nothing to say about the merits of these cases--indeed, that judicial review of folks long-since apprehended would jeopardize the government's foreign policy prerogatives and interfere with the President's constitutional authority as Commander-in-Chief.
We now know better. Yes, reasonable people continue to disagree about how the lower courts have handled the post-Boumediene case law, and the merits of individual decisions in individual cases. But those are entirely predictable disagreements on outcomes, and not disagreements about the more fundamental role of the federal courts in our constitutional system and their capacity to handle cases like these. Whatever the merits or consequences of how the D.C. Circuit has interpreted the AUMF, the fact of the matter is that our system works better when Article III courts are the ones answering that question--correctly or not. Indeed, for those who tend to relish in the suggestion that Boumediene has not had that significant an impact, such a view tends to undermine the government's not-so-subtle hints that the sky would fall if it lost. The government did lose; the sky's still here.
To me, then, the real question to ask on Boumediene's fifth anniversary is not why more hasn't come of it. Rather, it's where we would be today had Justice Kennedy joined the dissenters and Boumediene came out the other way--not just removing the Guantánamo detentions from any real Article III judicial oversight, but also validating Congress's power going forward to completely cut the courts out of the loop in at least some habeas cases? That that did not happen has been, is, and, I suspect, always will be, Boumediene's true legacy.