Before I go any further, let me take a brief detour to explain what habeas corpus is. Although many of you here today are probably familiar with - some of you even expert in - the concept of habeas corpus, that concept is generally not the small change of daily discourse among non-lawyers in our country. In its basic terms, a habeas corpus action is a lawsuit brought by someone in custody who asks to be released on the ground that his detention is unlawful. As a federal judge, I routinely saw the most common example of habeas corpus actions - a defendant who has been convicted in state court filing an action in federal court and arguing that his conviction and detention violate the U.S. Constitution.
For at least a century, habeas corpus has usually applied to imprisonment in regular criminal cases and detention by immigration authorities. Congress and the courts have developed an extensive body of law in both statutes and cases to guide habeas proceedings in those settings. Before the Supreme Court's decision in Boumediene, however, no alien enemy combatant detained outside the United States had ever before received a right to habeas corpus. The majority opinion itself acknowledged as much. Nonetheless, the Court concluded that the unique nature of this conflict, and the unique features of our naval base at Guantanamo Bay, Cuba , particularly the control we exercise over that base, were enough to extend the writ to cover the aliens who are detained there as enemy combatants.
We have previously expressed, and I think unsurprisingly, disappointment with the Boumediene decision. That disappointment came about because, in our judgment, the political branches had established, in response to prior Supreme Court guidance, reasonable--indeed, historic--procedural protections for detainees. The Supreme Court, however, has spoken on this issue, and our task now is to move forward consistent with the principles set forth in the Court's decision.
The responsibility of moving forward rests with the Legislative and Executive Branches as much as it does with the judiciary. This reality follows from the Boumediene decision itself: Although the Supreme Court settled the constitutional question of whether the Guantanamo detainees have the right to habeas corpus, the Court stopped well short of detailing how the habeas corpus proceedings must be conducted. In other words, the Supreme Court left many significant questions open, and it is well within the historic role and competence of Congress and the Executive Branch to attempt to resolve them.
The Court also recognized that habeas proceedings for the detainees at Guantanamo Bay could raise serious national security issues, and that these issues could require that we adjust the rules that would ordinarily apply in habeas proceedings brought by defendants in domestic criminal custody. Indeed, the Supreme Court went out of its way to emphasize that "practical considerations and exigent circumstances" must help define the substance and the reach of these habeas corpus proceedings. The Court recognized, and with good reason, that certain accommodations must be made "to reduce the burden habeas corpus proceedings will place on the military" and to "protect sources and methods of intelligence gathering."
With the Supreme Court's explicit recognition of such practical concerns in mind, let's consider some of the difficult questions that Boumediene leaves unresolved, and the policy choices that must be made in order to answer them.
First, will a federal court be able to order that enemy combatants detained at Guantanamo Bay be released into the United States ? The Supreme Court stated that a federal trial court must be able to order at least the conditional release of a detainee who successfully challenges his detention. But what does it mean to order the release of a foreign national captured abroad and detained at a secure United States military base in Cuba ? Will the courts be able to order the government to bring detainees into the United States and release them here, rather than transferring them to another nation? What happens if a detainee's home country will not take him back, or if we cannot transfer the detainee to that country because it will not provide the required humanitarian guarantees that the detainee will not be subject to abuse when he gets home?