The court has been leaving major questions unresolved: basically just saying that things aren't satisfactory and kicking them back to the district courts. But Boumediene comes out with a major rule under the non-suspension clause. Art I § 9: an individual liberty provision, but not left for the Bill of Rights.
The holding basically creates a right for the GTMO detainees, even though they are foreign and not on US soil: they can have their habeas petitions heard in the federal courts, and that Congress can not remove that jurisdiction: it's constitutionally protected.
And there are some hints to the district court on remand about what kinds of procedures might be lacking. So there are two major parts: the constitutional right to habeas review, and the fact that the procedures currently provided do not satisfy due process requirements.
Some background... First, habeas corpus. In 1215, the Magna Carta says the king can't detain people, except under law. It doesn't specify a remedy, though. In the 1640s, the English courts started to develop habeas relief to vindicate that right. A good body of common law got developed around it. And it got into the main body of the constitution, following the already existing state constitutions, and the common law in the colonies and England.
The first Judiciary Act contained a provision giving Federal courts jurisdiction for habeas petitions (so state jurisdiction wasn't sufficient by itself). By the 1860s, all people held under government control were able to file petitions to challenge their detention.
Several interesting precedents (though not dispositive ones for us). Milligan (1868): the President can suspend the write in time of war/emergency, but not in Indiana, because there was no war or emergency thre. McCardle: congress could take away jurisdiction in this case, but there's a hint that there's another avenue of access to the Supreme Court.
Then in WWII, there's the Quirin case: German saboteurs put ashore by submarine in 1942 to blow up US industry. They get tried, sentenced to death, and then they petition to SCOTUS. SCOTUS says "we have jurisdiction, but these proceedings are OK, and you can execute them." The proceedings were very speedy, and FDR had sent an ex parte letter to the courts saying "I don't care what you do, I'm going to execute them anyway."
And finally Endo, a companion to Korematsu. Mrs. Endo challenges the detention camps: you can't detain me just because I am Japanese, you have to have a hearing about whether I personally are disloyal. SCOTUS: you are right, go on home. Nowadays, federam habeas is most frequently used to review state convictions (a post-conviction review of the state court's decision).
Prior GTMO and related post-911 military tribunal/detainee cases. In 2004, the court started to address detainee cases. GTMO was chosen as a detention site because it was safe, secure, but also (because of Eisentrager) it was thought that as long as you kept foreign nationals outside of US territory, federal habeas jurisdiction didn't extend to them.
In Rasul, the court held that there is federal jurisdiction over foreign detainee cases, but didn't reach the constitutional question. It got there by interpreting the statute. But it also says that GTMO is different from post-war Germany-- it's part of the US for all practical purposes, so that's why there's jurisdiction.
In Hamdi, the court held that where the person captured is a US citizen, that person can challenge the determination of "enemy combatant." Because of these two cases, the executive branch sets up the "combatant status review tribunals." The next year, Congress enacts the Detainee Treatment Act: explicitly saying there's no federal habeas jurisdiction over detainees.
Next comes Hamdan. This was a war crimes trial. But the court says the effort to remove jurisdiction does not apply to cases pending at the time of the passage of the act. And in fact all 600 detainees have pending cases. And the procedures are inadequate, but they might be helped if Congress signed on to them. So Congress gets right on that, and passes the Military Commissions Act, and says really that there's no jurisdiction, unambiguously, etc., and establises some procedures.
And thus to Boumediene. This group was very big in Algerian politics. He gets picked up in Bosnia for plotting to blow up an embassy, but the Bosnian court finds no evidence. Nevertheless, the US convinces Bosnia to turn him over, and it's off to GTMO for him. Enemy combatant status is somehow found. After the decision, he got his habeas review, and it was found that the evidence (he had a high Al-Quaeda person's cell phone number) was not enough to hold 6 people all this time. So 5 were released, but Bosnia would only take 3 back. Boumediene himself is now living in France with his family. The US says there's plenty of evidence, but it's classified. This is a problem using civilian courts to deal with espionage cases.
So the court begins by discussing the scope of the writ at the time of the adoption of the Constitution. And it goes on to get rid of Eisentrager on the basis of inadequate procedure. Note that these procedures were not intended to be a replacement for habeas: the executive believed (following Eisentrager) that the writ didn't extend to detainees.
Note that SCOTUS doesn't say how the district court could do any better than the tribunals: there's lots of evidence that we just can't show to some folks. And note that both other branches (the branches that have responsibility for the conduct of military affairs) disagree: when the courts upset this, they're going right against the explicit legislative intent. Note, though, that Congress in 2006 was different (because of the election) than it was before the MCA was drafted.
Also, remember Jackson's dissent in Steel Seizure: this is the lowest power point for a branch (when the other two branches are against it). And how is the military supposed to provide evidence and witnesses for these hearings?
On the other hand (Carolene footnote): the main role of the courts is to protect minorities, in individual rights cases. Hard to imagine anyone less popular than a post-911 terrorist: if anyone needs protection, it's them. And we want the public to have confidence that if they got caught up in a situation like this, they'd have protection. Plus, the world is watching us, and we need to take our international reputation into account: we uphold the rule of law.
This is primarily a separation of powers decision. The court distinguishes a pretty long and strong line of precedent. And anyway, some of these people are really dangerous. If we have this kind of review, is release the proper remedy? Would soldiers perhaps consider just not taking prisoners, if they think they'll just have to face them again later? Maybe this isn't so good, but the alternatives are even worse. We really do need to protect intelligence sources and methods. Providing procedures will have costs. The tools that the court has to deal with this issue are fairly blunt-- a court isn't a magic solution to the problems that a tribunal has: it's not going to have better information or better options at its disposal.
And note, incidentally, that it's not as though the new president has everything all figured out. But note that the most likely outcome is that we won't detain more folks at GTMO (not that we'll stop detaining people, just that we'll do it elsewhere).
Also, the dissent in Lopez is pretty much the majority here: the view of when judicial power should be used seems to correlate with political position.
If you think you are going to lose on an insanity plea, you don't want to make the insanity plea, because you're more or less admitting to the facts of the allegation. You're just claiming that you didn't know right from wrong.
What does "intent to kill" mean? It means 1st degree murder. You are guilty of that because you intended to kill, but that phrase on its own means almost nothing. WI has not had a death penalty for about 150 years, but the electorate seems to want it, so maybe it will come back. But anyway Hughes gets 2 life sentences.
And what is 2nd degree murder? "Utter indifference to life." What's the difference between that and "intent to kill?" First and second... that's it. Life vs. 20 years. Now, we've gotten rid of 2nd degree murder and replaced it with 1st degree reckless homicide, and the penalty is now 60 years for pretty much the same crime. § 940.02. The point is that the wording of the statute is unimportant-- all that matters is what gets told to the jury, and they don't get told the penalties.
So now we have to show depravity and utter indifference, but how can we do that? Well Hughes could testify as to how depraved and indifferent he was, but that might not go far. So how do we show that? Expert testimony that he can't form the "specific intent." A statutory term, not a medical one. That's a legal policy term (meaning life in prison), and psychiatrists don't really know about that.
Consider "forensic psychology." "Forensic" means "legalistic and designed to convince gullible juries." The statement "he is a psychopath" is an example of a term from forensic psychology.
He appeals to the 7th Cir, a federal court. Typically, you get convicted in state court, the state appellate court agrees with the trial court, and the state supreme court refuses to hear the case because they're busy. So then you appeal to a federal court. This is the standard use of habeas: it's most often used to have federal review of a state court conviction (Boumediene was a review of federal court action, which is less common). To get this kind of review, you need a federal issue.
The 7th Cir is as slippery as an eel. They're incorporating 6A (the defendant can put on his case) into 14A. Does the due process clause of 14A ("no state shall deny due process") incorporate the federal bill of rights? When it was passed, nobody really thought it did, but later on people started using it that way. So due process in 14a is defined as not violating the federal bill of rights.
And this means that federal courts can review state court decisions that might conflict with federal interpretations of the bill of rights.
So there's nothing in 6A about psychiatric testimony, so why does he have the right to present it? Basically because due process means you have the right to present relevant and competent evidence.
A little sauce for the gander, though: WI honors psychiatric evidence for competence to stand trial, and the statute says that "intent" is an element, and that's a mental state. And incidentaly, who can tell right from wrong? That's kind of a tricky subject, but that's not what it means under the law: there it means you go to the asylum until you can tell the difference (usually it takes about as long as you'd have spent in jail...).
So we can see a lot of cynicism around this case. Note who decides whether psychiatry is generally accepted: medical and psychiatric professionals.
WI screws up: says that this would mean the guilty would go free. Well, not here, says the court, he's still going to prison, just for a lesser time.
Who should decide whether psychiatric testimony should be allowed? This is a Con Law I question, and the courts answer is "the federal courts." We do want uniformity basically (on the other hand, go away feds, we want states rights). We also don't want the constitution to mean different things in different jurisdictions: we don't want it to be ephemeral and malleable, so we do need a uniform constitution. That's what a constitution is, after all-- a binding fundamental law-- and we need to show that it exists. On the other hand, the vision of the constitution as a platonic form is pie-in-the-sky: lawyers have been tweaking the meaning of the constitution and changing it since it was written. There's no such thing as a fixed constitution. We could argue that the federal judges are more competent (drawn from a bigger pool, better paid, more independent), so maybe they'd make better decisions. Of course, maybe judges should be accountable in some way or another, so it's not clear that this will make for better decisions.
Also, this is protecting individual liberty, and the federal courts are best able to vindicate that (see fn 4, Carolene). Plus, bias doesn't travel well: local courts are more likely to reflect local bias than federal courts. Lots of attorneys want the feds to have the final say, in part because it's better for attorneys: more exciting, and with more hearings.
Of course, if you ask the 7th circuit who is best to decide this issue, it's not terribly surprising that they think they themselves are. After all, 100% of state court judges favor judicial review... the number is lower in legislatures and executive agencies.
On the WI side, federalism: we know best how to run our own stuff. In particular, elected judges know what their constituents want: of course the people should have some say in the way their justice is administered, rather than some self-appointed experts in some other state. Plus, experts cost money: trials get longer and more expensive. And we want experimentation-- we'll never know if psychiatric testimony is good or bad, if we just have a blanket rule on the subject. Also, it's really frustrating for state supreme court justices to be overturned by lifetime political appointees elsewhere. And this ruling is really an unfunded mandate: it's imposing the costs of psychiatric testimony on the states without ponying up any money.
Really the only right not infcorporated at this point is the right to civil juries. So what this means is that you'll see a whole lot of petitions for speedy trials imposed on the federal courts. That means the quality of justice will decline: it becomes just a factory (this from a speech by Rhenquist when he visited the law school). If we trust the states to take care of their own stuff, maybe they'll be free to deal with the pressing federal issues that are also on their plate.
But these arguments are moot: state criminal procedure is mostly federal at this point. Look at a crim pro casebook: it's mostly state cases appealed to the federal courts. So those federal courts probably should have been more cautious-- it's a heavy workload.
And what about the substance? No matter who we think the decision- maker should be, what should the decision be? Well, for one thing, we're just going to get a battle of the experts. Back to trial by champion: farcical results, uncertain outcomes, and high costs. So the state will definitely try to plead things out, and that means more extortion and less real justice. About 96% of cases end this way-- where did all this helpful procedural law get us? It got us to the point where we have super-high penalties, and no trials at all. Go for too much due process, and you get none.
If prevention of crime is a policy, we don't want psychiatric testimony: it just muddies the matter. And what this really amounts to is that the more dangerous a psychopath you are, the lesser your sentence. Deterrence is also diminished: every criminal (or would-be criminal) will just start trying to hire a helpful psychiatrist. And retribution, also: moral culpability is required for punishment.
Why is psychological testimony not useful? It's biased towards whomever is paying, and the people who are repeat-experts want to retain their positions. Plus, doctors really tend to find diagnoses: psychiatrists think everyone has mental illnesses. And the testimony is superficial: the doctor typically examines the defendant for 30-60 minutes, in a context where the defendant has a vested interest in trying to convince the doctor that he's not sane. Plus, the doctors are unreliable: they're not trained in forensic psychology, and anyway they don't have a superb track record about predicting future behavior (worse, in fact, than janitors at predicting recidivism, according to one study). Also, psychiatrists can't be allowed to supplant lawyers as the key to getting the outcome that you want at trial.
Footnote: if there's mandatory medical insurance, will psychologists and chiropractors lobby to be covered?
What happened after this case? The same year as this came down, WI had another case, and it said (in honor of the 7th circuit) that psychological testimony was allowed even in bifurcated trials. Then a year later a great WI Law Review article came out: a student note, but strongly presented. So then in 1980, you can almost feel the court's emotions in Heffernan's opinion in a case retracting WI's acquiescence to 7th cir: you said you weren't constitutionalizing the law, which means we can still disagree. So Hughes is somehow overturned by WI. Shortly thereafter, someone whose psychological testimony was denied files a their own habeas petition, and this time around the 7th circuit lets WI slide by. So, petition for cert to SCOTUS: cert denied. And as recently as 2002, WI was still denying psychiatric testimony about intent.