As I pointed out last week, and as legal scholar John Yoo did earlier this week in the Wall Street Journal, the “Boumediene Five” have done our nation and our Constitution no great service. But beyond the rhetoric, we really need to understand the real world impact of this ruling on the war we are waging against our enemies.
In Boumediene v Bush, besides, for the first time in history conferring habeas corpus rights on alien enemies detained abroad by our military during a war, the Court struck down as inadequate what Chief Justice John Roberts called “the most generous set of procedural protections ever afforded enemy combatants.” Consider the rights that our country provided to the enemy prisoners in question before Boumediene:
- The right to hear the bases of the charges against them including a summary of any classified evidence.
- The ability to challenge the bases of their detention before military tribunals modeled after Geneva Convention procedures. As Robert’s pointed out, some 38 detainees have been released as result of this process.
- The right, before the tribunal, to testify, introduce evidence, including exculpatory evidence, call witnesses, cross examine the government witnesses and secure release if and when appropriate.
- The right to the aid of a personal representative in arranging and presenting their cases before the tribunal.
- The right to have the government search for and disclose to the detainee any evidence reasonably available to it tending to show that the detainee is not an enemy combatant.
- The right to appeal an adverse decision from the tribunal to the Federal DC Circuit Court along with the right to employ counsel and secure release if entitled to it.
- The right to petition the DC Circuit to remand a detainee’s case for new tribunal consideration if the petitioner comes up with newly discovered evidence
- The right to require the Department of Defense (DOD) to conduct a yearly review of the status of each prisoner including the right to have the Secretary of Defense review any new evidence that may become available relating to the enemy combatant status of a detainee.
- As a part of that yearly review, the opportunity for the detainee to explain why he is no longer a threat to the United States, which could lead to his release.
- The DC Circuit can order release of the prisoner, and the head of the DOD Administrative Review Boards can, at the recommendation of those panels, order release upon an appropriate showing.
Again, these are the rights terrorists and battlefield combatants had before Boumediene was decided. These provisions provide more process than any that has ever been afforded prisoners of war in history. They go substantially past the rights afforded by the Geneva Convention. These are the rights that the majority decided were insufficient — and the result?
Their decision granting them the right to habeas corpus relief in federal courts.
Look, this issue isn’t going to go away, so consider these things the next time you hear someone defend the Supreme Court’s majority opinion as an attempt at “basic fairness” and to help prevent an innocent sheepherder from being improperly detained:
First, the Court left total confusion and uncertainty as to what rights these habeas petitions will vindicate. What will be the nature of the review under these new habeas rights? Will the Court review the constitutionality of the detention hearing procedures? What will be the burden of proof in these new proceedings? Will they have a factual hearing in order to try to recreate the circumstances in the field at the time of the detainee’s apprehension?
The answer is no one knows. It will all be dumped into the laps of some federal district judge and his or her law clerks. These are unprecedented circumstances and there is no way to predict what some judge might see as his or her new mandate under the constitution.
Again, it will be a federal judge — not the President or the Congress or a military tribunal — who will decide the appropriate extent to which the detainee will have access to classified military information, as just one of the more troubling examples. In other words, the branch of our government least qualified to make determinations on national security and foreign policy will now do just that. One other thing is certain. Whatever comes out of this new habeas corpus mish mash will generate a new round of appeals and our avowed enemies will work their way deeper and deeper into our court system.
Second, the majority opinion throws into question whether the tens of thousands of detainees in Iraq and the more than 1000 in Afghanistan are now entitled to habeas. Is the Court going to extend habeas protection to all foreign detainees held in foreign territory over which the United States is not sovereign, but has de facto control? We could be looking at tens of thousands of military detainee habeas cases in federal court.
Third, the Court’s decision encourages al Qaeda to continue in violation of the Geneva Conventions. The Geneva Conventions are designed to protect civilians and to reward combatants with certain protections if they abide by the Conventions. Al Qaeda specifically targets civilians and wears no uniform to distinguish themselves from the civilian population. Our policy now is to give al Qaeda combatants privileges that exceed the Conventions in terms of access to our court system without requiring al Qaeda to abide by these conventions themselves. This, of course, is an incentive for them to violate the law of war. They receive no penalty for not doing so, and by not wearing uniforms, makes any standard of proof requirement with regard to enemy combatant status more difficult for the United States. We are literally giving the enemy the means by which they can do us great harm.
Unfortunately it is not uncommon for a majority of the Supreme Court to make new law based not upon precedent but upon policy preferences of members of the Court. But this time it’s part of a much bigger picture. It is about power, and who gets to exercise it in an area that is vital to the security of this nation. This time it’s not only wrong, it’s dangerous.
It should also be noted that Senator Obama thinks that the decision in Boumediene v Bush is an excellent one. I don’t know what’s worse: that he doesn’t understand what the Court has done … or that he actually does and still thinks this was a sound ruling. Good luck to all of us.