Supreme Court Flexes Its Muscles in Boumediene Decision
Obsessed with expanding judicial power, Anthony Kennedy fails to recognize that his country is at war.
But ultimately accounts will not be settled. The reason is that although the Court wants, as the chief justice said, control over federal enemy combatant policy, it does not want to be accountable for it. Even Justice Kennedy — best understood as a kind of General MacArthur who cannot, however, be fired — must at some level fear going where his logic implacably leads, to the release of many, many more remaining Guantanamo detainees and granting habeas rights and, as Justice Scalia remarked, eventually other Constitutional rights as well, to practically anyone detained abroad by a U.S. officer, soldier, or agent for more than a de minimis period of time. Even Justice Kennedy must have some concern about the Court too directly sowing the seeds of a future bloody attack upon the United States and bearing political responsibility for it. How to deflect responsibility from the Court?
Well, one way is never to announce an actual policy yourself, something that might in fact be implemented, with measurable results, for better or worse. Better, instead, to force the executive to return to the Court over and over again, and then each time play the spoiler, sending the political branches back to the drawing board, sorrowfully, regretfully, so to avoid responsibility if anything untoward actually happens. Nor does the Court have to order people released from Guantanamo to generate enormous political pressure for the executive to do it on its own; Hamdan, and Rasul before it, each generated waves of releases without any order to do so and thus without the Court’s visible fingerprints.
It is hard to resist the conclusion that the real point of this game is to force the executive publicly to dance to the Court’s changing music. To come back kowtowing again and again, but somehow always coming up short, with the effect of demonstrating to all the world that executive power has been brought to heel and that the president dances to the Court’s tune but is never allowed quite to catch up to it. It is a special variety of show trial, albeit one that will cause many to rejoice at the executive’s comeuppance, starting with America’s law professors at home and its enemies abroad.
But just possibly, against all type — who knows? — Justice Kennedy’s deepest agenda is a fantastically clever double one. On the one hand, to humiliate the executive and humble it, putting it through loss after loss before the Court, unable to come up with a satisfactory process. On the other, simultaneously to force the process of individual habeas through years and years and years and years of multilevel review, remands, reconsideration, harmonization with other courts, Supreme Court review and remand — but keeping most remaining detainees off the streets for a long, long time, while yet impeccably and proudly bearing the banner of the rule of law, sanguine in the full approval of the Guardian and the New York Times and “all good-thinking people.”
This is, by the way, approximately what happens in “progressive” and “enlightened” Europe, in which investigating magistrates detain people — the 2004 Madrid bombing, for example — and hold them for years and years as the wheels of justice ever so slowly crank forward. It amounts to preventive security detention in practice while avoiding the political problems of openly declared security detention by political, rather than judicial, decision. But in that case, the question is that posed by the chief justice: are politics worthy of Talleyrand, Metternich, or Kissinger appropriate to the judicial branch? Is our Justice Kennedy capable of such deviousness? And should he be?
Correction: The original text read, referring to the passage of the MCA in 2006: “A Democratic Congress and a Republican president duly did so …” However, as a commentator pointed out, although Democrats won the 2006 midterm elections, the new Democratic Congress did not enter until 2007. The MCA was thus passed by a Republican Congress, and the article has been amended to take out references to parties of either Congress or the administration.
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Kenneth Anderson is professor of law at the Washington College of Law, American University, and a member of the Hoover Institution Task Force on National Security and Law. He blogs at the Law of War and Just War Theory Blog.
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17 Comments
1. Whispers in the airstreams » Blog Archive » Yet more on supreme power and political games.:[...] Kenneth Anderson describes a tactic being implemented by the lawfare brigade at the Pajamas Media: one way is never to announce an actual policy yourself, something that might in fact be implemented, with measurable results, for better or worse. Better, instead, to force the executive to return to the Court over and over again, and then each time play the spoiler, sending the political branches back to the drawing board, sorrowfully, regretfully, so to avoid responsibility if anything untoward actually happens. … It is hard to resist the conclusion that the real point of this game is to force the executive publicly to dance to the Court’s changing music. [...]
Jun 24, 2008 - 9:06 am 2. Freddie Funky:Won’t the only reasonable alternative for the military to be that they won’t take US custody of prisoners? In the long term, I would expect the US to negotiate agreements for detention facilities with Israel, the Kurds, Albania, or any other friendly groups and countries outside the SCOTUS jurisdiction and hand prisoners over as soon feasible from the battlefield. This would be essentially offshoring of prisoners, just like we offshore call centers, IT work, and polluting manufacturing. In the long run there is no way you can expect the military to subject itself to the overhead of complying with habeas protections. In effect this SCOTUS ruling just offshored the problem. I would expect this won’t be viewed as improving the lot of the detainee’s – but hey, they arent the issue are they?
Jun 24, 2008 - 9:09 am 3. David Thomson:Justice Anthony Kennedy is not an aberration. White guilt underpins left-wing thinking in the United States. We are being attacked by Islamic nihilists because of our alleged racist policies against the dark skinned victims of the Third World. The conflict therefore would end immediately if we were merely more understanding and compassionate. In other words, modern day liberalism is premised almost entirely on self hating Americanism.
Jun 24, 2008 - 11:10 am 4. MarkJ:The jurisprudential fools who comprise the Gang of Five can’t seem to grasp the fact that if they want to run wars…then they’ll have to take responsibility for their outcomes as well. And therein lies the source of their ultimate downfall.
To paraphrase Stalin, “How many divisions does the Supreme Court have?”
Jun 24, 2008 - 11:19 am 5. ZEITGEIST:[...] ON THE BOUMEDIENE DECISION, from Professor Kenneth Anderson. “It is as though the Boumediene majority somehow does not believe any of this has anything to do [...]
Jun 24, 2008 - 11:21 am 6. John Rogers:The solution is simple — give the Supreme Court exclusive jurisdiction over all habeas corpus claims.
Jun 24, 2008 - 12:09 pm 7. Jim G:I’m afraid it’s useless to reason with these judges. They don’t care about the law or reason. They have political objectives and worry only whether they can get away with it.
Jun 24, 2008 - 12:48 pm 8. JED:It brings to mind, what would we do if these 5 or subsequently appointed judges make a patently unconstitutional decision. Is there anything we can do?
Do I read this right in that killing or capturing an enemy abroad is equal to granting him citizenship?
Jun 24, 2008 - 2:02 pm 9. Now the REAL SCOTUS….Supreme Court Flexes Its Muscles in Boumediene Decision « Tizona’s Weblog:[...] Posted by tizona on June 24, 2008 Obsessed with expanding judicial power, Anthony Kennedy fails to recognize that his country is at wa… [...]
Jun 24, 2008 - 2:20 pm 10. SteveMG:A Democratic Congress and a Republican president duly did so, or thought they did, in the Military Commissions Act of 2006 (MCA).
Correction: In 2006, the Republicans controlled Congress.
The Democrats won the 2006 elections but only assumed control in 2007 when a new Congress was sworn in.
Jun 24, 2008 - 2:23 pm 11. rotwang:Scalia is SUCH a bedwetter. What the Nation is going to regret is that the Supreme Court was unable to roll back Bush’s paranoid, lawless administration earlier on. Guantanamo puts the lie to any claim of American moral superiority and provides a snappy one-word rebuttal to the phrase “home of the brave.” I can think of no more cowardly assertion than “the Constitution is not a suicide pact.” If we’re too terrified to live up to our ideals, we deserve whatever we get.
Jun 24, 2008 - 4:45 pm 12. Benson:Let’s consider corrective measures. First: judicial reversal. Dred Scott, Plessy vs. Ferguson, Brown vs. Board of Ed — if history is a guide, cleaning up after Kennedy may take a half century. Second: ignore the ruling, as did the feds at least once before (the Trail of Tears). Not practical. Third: state remedies, as for the Kelo disgrace. Irrelevant, but keep reading. Fourth: FDR tactic — pack the highest court, get it to reverse pronto. Silly; did not work the first time.
So how about a constitutional amendment, making the waging of war an exclusively executive function, and removing its conduct from the jurisdiction of the federal courts? Would enough state legislatures go for it? (Somebody around here must have some common sense!) Opinions and predictions, please.
Jun 24, 2008 - 5:12 pm 13. Roark:The United States Supreme Court is in dire need of 9 Clarence Thomas’s.
Jun 24, 2008 - 6:49 pm 14. Adam:Isn’t this merely the natural result of bad policy? Instead of following the laws of war and separating everyone into the various pots of privileged combatant, unprivileged combatant and civilian, the administration lumped everyone remotely (and sometimes not at all) connected with any terrorist group and called them “unlawful combatants” with no rights. The Court, instead of trying to actually get the law right and instruct the President to actually follow the laws of war, has always deferred to President’s incorrect categorization that everyone can be classified as either an unlawful combatant or “no longer dangerous” to use the CSRT/ARB phrase. If everyone falls under the same rubric, then why not give them the protections that all criminals get rather than no rights at all? Bad law built upon bad policy.
Jun 24, 2008 - 8:23 pm 15. john d:The Geneva Convention lays out the requirements for being considered a “lawful combatant.” The obvious thought is that if the prisoners do not meet the requirements for being a ‘lawful combatant’ under the GC and are not obviously a non-combatant, then they can be considered as ‘illegal combatant.’
None of the rights provided the legal combatants are required to be extended to illegal combatants. The US was being nice by extending some of the rights under the GC to illegal combatants.
The whole question of what rights the Gitmo (and other) prisoners have depends entirely on the status of legal or illegal.
Or are we scrapping the GC?
Jun 24, 2008 - 9:14 pm 16. Joshua:Adam:
The rules that the President and Congress worked out for detainees provided them with more rights than lawful combatants receive under the Geneva Convention.
Jun 24, 2008 - 10:09 pm 17. tanstaafl:Cutting to the chase. And cutting through Justice Kennedy’s 158 pages of rambling verbiage.
Why, really, should it ever stop if, as the chief justice said, the issue is “not really about the detainees at all, but about control of federal policy regarding enemy combatants”?
…It is hard to resist the conclusion that the real point of this game is to force the executive publicly to dance to the Court’s changing music. To come back kowtowing again and again, but somehow always coming up short, with the effect of demonstrating to all the world that executive power has been brought to heel and that the president dances to the Court’s tune but is never allowed quite to catch up to it. It is a special variety of show trial, albeit one that will cause many to rejoice at the executive’s comeuppance, starting with America’s law professors at home and its enemies abroad.
Jun 25, 2008 - 1:20 pm