Boumediene v. Bush: Habeas Corpus, Exhaustion, and the Special Circumstances Exception

I. INTRODUCTION On November 20, 2008, six native Algerian detainees at Guantanamo anxiously listened over a phone line for District Judge Richard Leon's ruling from the bench on their writ of habeas corpus petitions.1 After numerous legal proceedings and close to seven years of detention, five of the men learned that because the Government failed to sufficiently justify their detention, the court would grant their petitions and order their release.2 Judge Leon's decision followed six days of closed-door hearings, testimony and evidence was offered to prove by a preponderance of the evidence that these men where in fact enemy combatants.3 According to the Government, the petitioners "planned to travel to Afghanistan in late 2001 and take up arms against U.S. and allied forces."4 Despite the Government's submission of 53 pages of narrative and approximately 650 more of exhibits, Judge Leon found the Government relied exclusively on from a classified document given by an unnamed source to support its allegations against the petitioners.5 In addition, the court found that the Government failed to provide sufficient evidence to effectively evaluate the credibility of the unnamed source.6 While Judge Leon found that the information relied upon by the unnamed source "was undoubtedly sufficient for the intelligence purposes for which it was prepared, it is not sufficient for the purposes for which a habeas court must now evaluate it."7 The court explained further that "[t]o allow enemy combatancy to rest on so thin a reed would be inconsistent with this Court's obligation ... to protect petitioners from the risk of erroneous detention."8 Judge Leon's decision came only five months after the Supreme Court's decision, in Boumethene v. Bush, to grant Guantanamo detainees the ability to challenge their detention by applying for a writ of habeas corpus in federal court.9 The fact that such a hearing was ever held underlies a significant aspect of the Supreme Court's decision. Following the Court's decision in Boumethene, the detainees were allowed to forego the review procedures already available to them by the Combatant Status Review Tribunals (CSRTs) and the Detainee Treatment Act (DTA) - a legislatively created habeas substitute that none of the detainees even attempted to use - and proceed immediately to federal district court.10 At first glance, the Boumethene decision appears to stand as a marked departure from the exhaustion doctrine of habeas corpus. Developed mostly in the state criminal context, the exhaustion doctrine requires state prisoners to exhaust all state judicial remedies before they proceed with their habeas petition in federal court.11 Thus, while petitioners may seek to challenge the constitutionality of their detention at any time, such applications will likely be rejected unless the petitioner has exhausted the remedies available in state court.12 Despite its roots in the state criminal context, over the years the Supreme Court has extended the doctrine to other circumstances. For example, in Gusik v. Schilder,(TM) the Supreme Court recognized the doctrine's application to courts-martial cases.14 In extending the exhaustion doctrine to this new context, the Court remarked, "The policy underlying [exhaustion] is as pertinent to the collateral attack of military judgments as it is to collateral attack of judgments rendered in state courts."15 Among the policies underlying exhaustion are two fundamental principles: comity and judicial efficiency.16 Comity, a principle which traces its genesis to interactions among the courts of foreign nations, requires "the recognition that the courts of coordinate systems can and must exercise forbearance in cases in which both are interested, lest they interfere with each other, create confusion and distrust, and sacrifice the utility that comes with cooperation."17 Thus, by requiring federal courts to defer adjudication until the appropriate state court has rendered a decision, the exhaustion doctrine promotes inter-system respect and predictability. …