Historically Unappealing: Boumediene v. Bush, Appellate Avoidance Mechanisms, and Black Holes Extending Beyond Guantanamo Bay

This article revisits the historical questions raised by the U.S. Supreme Court in Boumediene v. Bush about the reach of the writ of habeas corpus at common law to territories like Guantanamo Bay. Despite extensive oral arguments and briefing about the significance of prior case law, both the Court’s majority and dissenting opinions concluded that there was no precedent definitively answering their historical questions about the reach of the Great Writ. Justice Kennedy suggested that there simply may not have been good historical parallels for the detentions at Guantanamo Bay given the “uniqueness” of the territory and the particular challenges of terrorism in the present age. Justice Scalia suggested that the absence of case law demonstrated on its own that the writ was simply unavailable at common law to similar foreign prisoners held outside the sovereign control of the United States or the English Crown. This Article provides a different explanation. Its research reveals the following discoveries: (1) the legal status of the U.S. Naval Station at Guantanamo is not that unique compared with other territories acquired in the early Nineteenth Century; (2) the writ of habeas corpus and other Constitutional rights were routinely recognized in all of those territories by statute or Executive Order; and (3) the availability of these rights is masked in Article III case law because constitutional disputes were primarily handled by territorial courts established outside the purview of Article III of the U.S. Constitution. This Article further offers the theory that the political branches “voluntarily” recognized most rights (including the privilege of habeas corpus) and granted territorial courts jurisdiction to hear constitutional challenges in the first instance in an effort to intentionally avoid or delay judicial review of most constitutional questions arising in those territories by Article III courts. These developments were spurred by early Supreme Court decisions indicating that the Court might intervene if certain fundamental Constitutional rights were denied in those territories. From that point on, the political branches actively manipulated doctrines of judicial avoidance to prevent potentially adverse constitutional precedent. The absence of most of this history in reported case law from Article III courts demonstrates a significant blind spot of reported precedent as a historical guide.