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Supreme Court Flexes Its Muscles in Boumediene Decision
Obsessed with expanding judicial power, Anthony Kennedy fails to recognize that his country is at war.
For those who were perhaps backpacking in ANWR or following Tiger Woods rather than developments in Constitutional law, the latest Supreme Court Guantanamo detainee ruling, Boumediene, was handed down last week.
The key holding extends the right of habeas corpus to alien detainees held by the executive as “enemy combatants” incident to the “global war on terror,” at a U.S. military base on foreign territory, Guantanamo.
Habeas corpus is the right to have an independent court of law review the legality of a person’s detention by the sovereign. It is an ancient right of common law, the Great Writ, imported by explicit reference into the Constitution. Despite its lineage, however, few if any prior to Boumediene would have thought it extended to foreigners detained on foreign territory, and less still to enemy combatants in war.
Yet Justice Anthony Kennedy, the Court’s swing fifth vote, held all those things and so many, many more.
The decision predictably set off an eruption of comment — more exactly, two eruptions of comment. One was on the left; it included the New York Times, the vast majority of the MSM, 99% of the law professors I know, and Barack Obama, which is roughly to say, “all enlightened and reasonable folk.” They celebrated Justice Kennedy’s majority opinion as returning the United States back to the path of civilization and the rule of law. The other eruption was on the right. It included the Wall Street Journal editorial page, others in the conservative media, a small clutch of heterodox international law scholars, conservative think tanks, former senator and presidential candidate Fred Thompson and, equally roughly, “people who, enlightened or not, do not believe the Constitution is a suicide pact.” They — we, as it happens — grimly agreed with the final words of Justice Antonin Scalia’s dissent: “The Nation will live to regret what the Court has done today.”
Boumediene and its controversies can only be understood in light of what the Supreme Court said in its last Guantanamo pronouncement, Hamdan. The Court said the executive branch should seek legislation from Congress and come up with a suitable legal process for the detainees. A Congress and the President duly did so, or thought they did, in the Military Commissions Act of 2006 (MCA). The MCA, however, denied habeas review and limited jurisdiction of the federal courts to hear detainee cases. It did so by reference to the provisions of an earlier statute, the Detainee Treament Act of 2005 (DTA), and it clarified that DTA provisions applied to pending cases. The DTA and MCA together substituted appeals through the military commission process, but also provided, at the end, review by a regular, independent, life-tenured civilian appeals court, indeed the most prestigious of those courts, the D.C. Court of Appeals.
Whereupon Justice Kennedy in Boumediene — gazing with Olympian remove and no small disdain upon the complex, highly negotiated work of the two political branches — tossed aside the heart and guts of the MCA and DTA as self-evidently unworthy, in judicial rhetoric at once lofty but utterly vacuous. It is passing strange and distinctly unhelpful that the Court’s swing vote should also be its intellectually least prepossessing, and the justice most given to writing opinions in the obfuscatory tone of God addressing eternity.
Habeas at Guantanamo affirmed in principle. But developing actual standards for individual cases — what the specific rights of detainees are and how they should be weighed against real-world security concerns — was handed off to the myriad federal district courts. The Court offered no glimmer of what it thought actual, workable principles should be. It is evident that Justice Kennedy has no idea; he simply believes that district courts will be better and, perhaps, have greater legitimacy at it — particularly in the world of global judicial elites in Europe in which Justice Kennedy basks — than the American people’s elected representatives. Indeed, Justice Kennedy confidently invited the federal courts to do precisely what Congress sought, through the MCA and DTA, to avoid — courts wading piecemeal into individual detainee habeas cases. It is as though the Boumediene majority believed that developing habeas standards for hundreds of aliens at Guantanamo held as combatants in a war on terror was simply a matter of complex litigation — asbestos, tobacco, what have you — like any other. Courts will apparently be able to work case by case, from the bottom up, through trial and error, and if you release some bad people that maybe you should not have, hey, live and learn. Recidivism happens.
It is as though the majority believes that the remaining population at Guantanamo, those not already released during the last four years, the percentage of the original population still remaining today, consists of a small handful of Khalid Sheikh Mohammeds and then a bunch of innocent shepherds scooped up in the security net or, anyway, many innocents or mostly innocents or small fries among a few actual al-Qaeda terrorists. The justices — and everyone else — would do well to read the most important book on Guantanamo ever published, Benjamin Wittes’s brand new Law and the Long War, which exhaustively documents everything known about the remaining population at Guantanamo, with special attention to uncoerced statements by the detainees themselves: whatever the population’s composition in 2002-4 (which is where the MSM narrative remains stuck, even in 2008), it is today, through continuing releases by the administration, both far fewer but far more risky. The remainder, as it declines, includes a far larger percentage of detainees plausibly alleged to have engaged in al-Qaeda activity before detention and a not insignificant number who, on their own uncoerced testimony, remain committed to it now.
That is even leaving aside KSM and the so-called “high-value detainees” whose riskiness is not at issue. Of course one may adopt a radical skepticism toward allegations that are hard to prove or disprove and go with the “innocent shepherd until proven otherwise” heuristic. But even those who vigorously disapprove of Guantanamo detentions on principle cannot simply ignore the evidence Wittes adduces to show that the remaining Guantanamo population carries significant probabilities of continued violence and terrorism if somehow released.
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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