Boumediene: A Supremely Problematic Court Decision
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.
I think the most appalling aspect of this decision is that it tells our armed forces they simply should not take prisoners, but rather liquidate all enemy forces on the battlefield. If they take prisoners now, the Supreme Court says, they risk (a) bankrupting their budgets with defense work at trials and (b) losing those trials and having dangerous foes let free into American society and/or the world.
Just one judge, Kennedy, is responsible for this outrage. From the four crazed leftists no better can be expected. He should be called to account, and for this reason alone Barack Obama must not be the next president.
Senator Thompson is right in a critical point ignored by the media: this decision is another power grab by the courts – pure and simple.
Those in favor of civil liberties should fear an out of control court, not the detainment of foreign terrorists overseas. A court which invents rights out of thin air can snatch them away the same way.
This is yet another very scary ruling by SCOTS – a ruling based on policy, not the law, and not within the constitutional powers of the court.
Republicans should start impeachment proceedings against Kennedy. They won’t win, but at least maybe the public will learn from that how dangerous the court has become.
Modern academics get aroused at the idea that their ersatz Euro-socialism is now the law of the land.
Meanwhile, law students have for generations been persuaded that any conflict between the three branches of government is ultimately decided by the Supreme Court – not accidentally making the courts supreme over the elected branches.
What to do? The President’s remedy is simple but requires daring – tell the country in a few well-chosen words on television that the supreme court’s decision endangers national security, and that for the sake of the country and future presidents, Boumedienne will not be followed.
The President’s earlier comment that “we will abide by the decision” must be revoked.
In the words attributed to Andrew Jackson “[Chief Justice] John Marshall has made his decision; now let him enforce it.”
Fred Thompsons Second point;
Gitmo is a area over which the Goverment has complete and permanet control. Also the Government presented “no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiction.”
This descison does not seriously throw into question “whether the tens of thousands of detainees in Iraq and the more than 1000 in Afghanistan are now entitled to habeas.” because the neither of the conditions above apply.
Fred Thompsons Third point is kind of fantastical don’t you think? AQ were considering abiding by the laws of war and the Genva Convention but now they won’t because of a Supreme Court decision? “Muhamed! Send the uniforms back to the warehouse the Supreme Court suports Habeus for Gitmo prisoners.”
Fred Thompson should s.t.f.u. He bowed to the Republican “leadership” on McCain being the nominee and now he’s nothing more than another lawyer in Washington D.C.
Aside from himself, and his family who does he represent? No one.
That puts his opinion on par with every one else in America who thinks the SCOTUS is out of control, and that’s millions.
So freaking what. (golf clap for Fred).
Bravo.
If he’d truly wanted to make an impact he’d have stayed in the race, the one conservative running.
Too many Americans tacitly believe that the U.S. Supreme Court primarily speaks out on cultural war issues. These individuals pay little attention to the decisions concerning national defense, criminal justice, and a host of other matters that truly touch them directly. If they did—no Democratic Party presidential candidate would have a realistic chance of getting elected. The Republican candidate would win each time by a landslide. Writer Jennifer Rubin, however, points out that we do not live in a fair world. The MSM is not likely to clearly explain to the public the clear choices between the Democrats and the GOP. Thus, John McCain’s campaign will have to spend a lot of money to inform the voters. He is on his own.
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.
Justice Anthony Kennedy (in particular) seems to look to “enlightened” (ahem) European precedent in thinking about a case as opposed to the US Constitution, the (only) document whose tenets and principles he was hired to uphold.
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.
Since A Picture is Worth 1000 words
The best way to side-step all this is to just withdraw from the GCIV. The US government has a tendency to stick with a treaty long after it has stopped being useful.
The purpose of a treaty is advancing the national interest. When that interest changes, then that treaty should be annulled. A fine example is the NPT. It was a good idea back in the day, but all it’s doing in the 21st century is assuring tyrants and despots build nuclear weapons while preventing democracies from having them. So it is disarming our allies and arming our enemies.
I have asked the Foggy Bottom crowd to explain that little bit of logic to me. They closed down their web site. Co-INK-see-dink, I’m sure.
If the GCIV is annulled, all sort of useful tools in the WoT become available. My favorite is having the CIA compile a list of Mosques that preach Jihad. Evertime there is a terrorist attack on ANY western interest, randomly select a mosque from that list and JDAM it during Friday sermon. Friday sermon is where that Jihad preachin’ Imam gets 75% of his income. He can spend friday morning watching the faithful flock (with their alms) to the non-jihad preachin’ Imam down the street.
Tit-for-Tat is a principal understood by everyone except our nuanced friends on the left.
Roy M,
Fred’s 3rd point is no more fantastical than liberals’ pre-Boumediene contention that Al Qaeda was encouraged to cut off people’s heads based on our actions at Guantanamo. I agree with you that what AQ does is in no way caused by our legal filings, but we-are-the-cause-of-everything narcissism is a game both sides play.
Geneva says we are allowed to execute everyone of these guys on the battlefield. We should …
Kim Zigfield alludes to the real problem with the Boumediene decision. It undermines the carefully constructed system by which surrendering soldiers and non-combatants are protected from harm during time of war.
The extreme sanction of death for unlawful combatants under international law was designed to prevent military activities that would make it impossible to distinguish soldier from civilian. The requirement that irregular military forces have some form of uniform ensures that non-combatants can be readily identified. The Marquis in WWII France wore armbands and the Viet Cong wore the famous black pajamas to meet this requirement. Now that Justice Kennedy has decreed that AQ terrorists not meeting these requirements have superior rights to regular soldiers he has put the lives of legitimate soldiers at risk and has made non-combatants into targets whenever US Forces are engaged in combat in populated areas (see Haditha).
Back in the old west a horse thief was hung not because people held horses in such high esteem but because the act of stealing a man’s horse put a life at risk. Justice Kennedy has just made international horse thievery a lot more profitable.
As a parent who has experienced the military justice system up close and personal, I believe it is due for a shake-up. Better by us than some world court who we know of course does not have the American people’s best interest in mind. If this “War on Terrorism” will be a long one then we better take a look at the captured enemy prisoners and the law and fix it if need be. If the Supreme Court does not have the interests of the American people and our Constitution of the United States in mind, we should also take a hard look at them.
I have yet to hear a conservative acknowledge the most important point in all this. This ruling is a direct result of the hard line the military and the bush administration took on Guantanamo. If they had simply put some mechanism, any mechanism, in place by which an innocent detainee would be found and released, this would not have happened. The idea of indefinite detention without prosecution or even some evaluation of guilt is the definition of un-American. Yes, national security has been weakened, but this could have been avoided if the people behind the Guantanamo detention system had played by the rules.
The first rule of war is ” There are no rules “.
We must kill every single person who picks up arms against us. Starting with the leaders first.
“If they had simply put some mechanism, any mechanism, in place by which an innocent detainee would be found and released, this would not have happened.”
These guys were picked up fighting American soldiers on the battlefields of Afghanistan.
There are no innocent detainees.
bush administration took on Guantanamo. If they had simply put some mechanism, any mechanism, in place by which an innocent detainee would be found and released, this would not have happened.
Holding these individuals these many years without charging them is a big mess. My overall impression was that “Guantanamo” should never have happened in the first place.
However, proving innocence/guilt is hugely problematical with the detainees that are still there. Some have indicated a desire not to “go back” or a desire to be released at another time of year. Others have the problem that their home countries don’t particularly want them back.
Some 30 who’ve been released have reverted to the killing grounds of terrorism.
How ever you slice up the cake of Guantanamo, opening these individuals up even further to “lawyerly games” and arbitrary rulings of federal judges and habeas corpus under the US Constitution strikes me as (yet another) death knell to intelligent life on the planet.
“First, the Court left total confusion and uncertainty as to what rights these habeas petitions will vindicate.”
This happens with many Supreme court cases because a new decision means change. Trying people on secret evidence is unAmerican in my opinion.
“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.”
Not really. De facto control does not magically undo the sovereignty of those nations.
“Third, the Court’s decision encourages al Qaeda to continue in violation of the Geneva Conventions. ”
Gosh, and Al Qaeda was so close to following Geneva conventions too. Darn!
I don’t see how these objections amount to anything. The last one is complete nonsense.
Alan – didn’t you read the article?
“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. ”
Some 38 (at least) have been released.
Please get your facts straight.
Alan:
The US government has vetted and released many prisoners from GITMO, about 30 of which have shown up again on the battlefield. You should spend a little more time gathering facts before you post.
Congress under its powers to punish pirates and others who break the rules of war set up a system of tribunals to deal with the remainder. Justice Kennedy has decided that these rules don’t satisfy his requirements. As I said above, all he has done is ensure fewer lawful combatants will be taken prisoner on the battlefield and that more non-combatants will be inadvertently killed.
“The US government has vetted and released many prisoners from GITMO, about 30 of which have shown up again on the battlefield. You should spend a little more time gathering facts before you post.”
Check your own facts. The DOD claims no knowledge of ANY detainees who have “returned to the battlefield” to kill Americans. Yes, detainees have been released…but the “30 recidivists” are a convenient political meme of unknown origin, just like the assertion that all Guantanamo detainees were “taken on the battlefield.”
Just remember, if the current administration had not been so interested in bypassing significant portions of the Constitution, this wouldn’t have come up. When Mr. Thompson mentions all of the “rights” of the “detainees” he forgets to mention that the only reason that these exist was because it was clear that originally the detainees had NO rights, not even against torture, or extrordinary rendition, secret search and seizure of citizens, no right to see any charges or evidence of any kind, etc.
The administration deserves what it got with this, and the pain is that it will have to be cut back by other decisions in later administrations.
rotwang:
I never said kill Americans, I said returned to the battlefield.
Here is a story from CBS news about seven of them…
http://www.cbsnews.com/stories/2004/09/24/terror/main645493.shtml
I have a real problem with spending one cent of my tax money to legally defend people who want to destroy my country.
Brace says:
“it was clear that originally the detainees had NO rights, not even against torture, or extraordinary rendition, secret search and seizure of citizens, no right to see any charges or evidence of any kind, etc.”
Fine words except none of these detainees are American citizens protected by the Constitution. Show me one case where an American citizen was arrested in the United States who did not eventually receive a fair trial in a civilian court. American citizens captured on the battlefield are guilty of treason and should be tried and punished as such. Non-citizens captured while bearing arms on the battlefield who are unlawful combatants have no rights under international law or the US Constitution despite what the esteemed Justice Kennedy might think.
By giving such individuals superior rights to lawful combatants he has ensured that fewer prisoners will be taken whether they are lawful or unlawful combatants. At best you can say that Kennedy can’t get beyond first order thinking and at worst he is a fool. It is pretty clear that like Kennedy, you have little understanding of the real implications of the Court’s decision.
Didn’t anybody bother to copy-edit this screed? Generally, when one is discussing matters of law, which are entirely concerned with picayune linguistic determinations, one’s credibility is pretty well flushed down the toilet by incorrect comma usage, substituting the possessive for the plural, and misusing words.
Judging by his writing ability, one can’t be entirely sure Mr. Thompson even understood the decision he read.
I wonder how many soldiers will now decide that capturing a terrorist is not worth the risk and will simply eliminate the threat where it is encountered?
No longer can they feel safe in taking the risk of capturing the terrorists for interrogation. Once captured, the terrorists automatically are granted superior rights to the very soldiers who risked their lives to capture him. No longer can the soldiers capture a terrorist, turn him over to his superiors for interrogation, trial, sentencing and execution of the sentence. Now these brave men must undergo intense absurd cross examination by some lame lawyer not worthy of wiping the dust from the boots of those soldiers. A lawyer who views the US military as the enemy and the murdering terrorists as the aggrieved ones.
How soon before the non-supreme court issues a ruling that these soldiers must now step out from behind a barricade, unarmed, arms upraised and read the terrorists their miranda rights in arabic and 50 other languages BEFORE returning fire when attacked? Of course, if the soldier failed to get on his knees and bow to mo hamm ed, his actions will be considered insufficient and the terrorist, if he hasn’t already murdered the soldiers, will be set free.
If the American voter does not wake up and vote against the party of the braying JACKASS, we can see more such incompetent judges appointed to the non-supreme court. If “osama” obama gets 2 terms, you can feel pretty well assured that there will be a 7 to 2 majority of idiocy versus common sense and application of the US Constitution. In fact, the party of the braying JACKASS and those incompetent jurists may very well choose to scrap the US Constitution and replace it with the ko ran.
This ruling does create problems. Lawyers could try to use this ruling to have “any and all ” combatants endowed with “Habeas Corpus” type rights. Lets face it, typical soldiers already have a difficult & life threatening split second decision to make when they encounter people on the battlefield. Too many civilians have been killed according to human rights groups, by soldiers who erred & shot them thinking they were combatants.
Now, this ruling further complicates this issue along with numerous other legal issues.
How can soldiers forced to chose life or death in a split second, be forced to determine the status of someone in the field who they have every reason to suspect was just shooting at them moments before?
Why can’t America have a system to deal with enemy combatants & a legal system designed just for that purpose, rather than permitting enemy combatants access to our citizen legal system?
Oh that’s right. We did have such a system, but we are told by some its not fair. It exceeds the Geneva rules & regulations & it coveys more rights on enemy combatants than have ever been accorded by any nation in the history of mankind, but according to some, its inadequate & we must go all the way & give those who would murder us, actual citizen civil rights. This despite the reality that if one of ours or even a typical citizen were captured by this enemy, they would be beheaded with no trial at all or a kangaroo trial at best!
Hey…isn’t that what these “enemy combatants” want anyway? To fight to their death on the battlefield?
I say, give them what they want!
A dead terrorist needs NO Hapeas Corpus!
As far as those at Gitmo goes…they won’t be going anywhere anytime soon…appeals and the whole court process will tie them up for YEARS!
Oh, and Obambi gets this issue totally wrong…(AGAIN!):
http://www.nypost.com/seven/06232008/postopinion/opedcolumnists/anti_terror_oops_116762.htm
Why cant BUsh just reclassify them as POWs? Then the SC would have to STFU.
The real issue is the judicial power grab. But for the moment, this could probably be dealt with by an Amendment slightly broadening the Suspension clause to include warlike activity against the USA from within or without. I don’t suggest that such an Amendment could pass in the current climate, but it would help. A more precise definition of “warlike activity” would help, too; at what point does a criminal gang become a terrorist agency, and at what point do attacks on foreign soil become warlike?
Dealing with the power grab is harder. Alexander Hamilton was wrong about the Supreme Court being the least dangerous branch of the government; it is setting itself up as the council of solons, for “Government of SCOTUS, by SCOTUS, for perfection of society under SCOTUS.” At some point, we are going to have to consider impeachment of some justices. And that will open the door to the end of an ‘independent’ judiciary.
I’ve suggested elsewhere a lottery, perhaps to be held every six years, in which each justice would be represented by the number of times he has voted to overturn a law or sustain such an action by a lower court. One justice would be selected, and the prize would be pensioned retirement.
Gabriel Fry:
He’s Fred Thompson. He’s above the English language.
“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…”
Hell, in WWII, by 1945, we were holding around 500,000 foreign nationals right here in the United States, not to mention people we were holding overseas. This includes 400,000 POWs, and tens of thousands of foreign nationals who weren’t POWS, and if you think they were being allowed to file writs of habeas corpus to challenge their detentions, you’re sadly mistaken. If they had been, our court system would have collapsed in about ten seconds.
Of course, in that war the United States was run by liberal Democrats, and in this war the commander in chief is a Republican, hence the different rules demanded by the liberals in the SCOTUS. One set of rules when our guys are running the country, another set of rules when they’re not, is the credo here.
This has nothing to do with the law, it has everything to do with partisan attempts by liberals to cripple the ability of a president to wage war, because liberal justices love guys like FDR, but they don’t care for Bush and the Republicans.
As a matter of fact, just about everything the Bush administration has done in our little war on terror is based on the actions of the Roosevelt and Truman administrations in WWII and in the post-war period (in case people aren’t aware of it, the United States held many foreign nationals not just during the war, but for years after the war had ended, an obvious example being the many Axis nationals who were tried for war cimes…and, of course, when they attempted to file writs of habeas corpus, the SCOTUS said that they COULD NOT DO SO, even though the war was long over). In the 1940s the liberal SCOTUS backed Roosevelt and Truman to the hilt, now they do everything in their power to block Bush.
The SCOTUS is a total joke, but then they always have been.
Bush ought to simply refuse to abide by this idiotic decision, and get on with the job at hand, which is to kill terrorists who have attacked our country and killed our citizens, and smash the state sponsors of terrorism who have helped them do it.
This decision was one of the most dangerous in our nation’s history.
This has nothing to do with the law, it has everything to do with partisan attempts by liberals to cripple the ability of a president to wage war…
Fundamentally, yes.
Very little to do with “the law” and much to do with an “in your face” imposition of the personal mindset of a (slim) majority of members of the Supreme Court.
It’s astonishing how old men in robes (and one woman) feel so morally superior so as to “adjust” the law in the name of a personal worldview.
Ultimately, with decisions like this one, “Kelo”, the juvenile death penalty and (going back a long way) Roe v. Wade, “the court” is progressively diminished in the eyes of we citizens.
“Gusbenz:
Gabriel Fry:
He’s Fred Thompson. He’s above the English language.”
Not Exactly. He is a southerner and like any good American DOESN’T speak English. He speaks Southern American. As distinct from Northern or western American.
All of which, like Canadian, Scottish, Irish, Australian and most commonwealth languages, are NOT English. If you don’t believe me, ask an Englishman.
AS far as Commas go;
http://owl.english.purdue.edu/handouts/grammar/g_comma.html
The above rules are for professional and/or scholarly writing and don’t apply to the internet. You can try to force your idea of style down the throats of 1 billion internet users, but I don’t think you will get very far.
Like Riggo said in his moment of glory; “Loosen up, Sandy babe`”.
As far as Senator Thompson’s legal acumen, he not only OWNS a law firm but no doubt recognizes an actionable slander against his legal skills, which at least puts him ahead of you.
Back on topic, At least one Supreme court Justice should be impeached. There is a Fwench term that covers it exactly. I can’t spell it, but it means, ‘to encourage the others’, or something like that. Won’t happen, of course. It would be a good thing for both the Republic and the Constitution.
Typos_R_us
So what happens if we have a real invasion into the territory of the US? Do those enemy captured on the battlefield also get HB rights? Do they get to “lawyer up” as a way of increasing the burdens on the US government?
Gabriel Fry says:
“Didn’t anybody bother to copy-edit this screed? Generally, when one is discussing matters of law, which are entirely concerned with picayune linguistic determinations, one’s credibility is pretty well flushed down the toilet by incorrect comma usage, substituting the possessive for the plural, and misusing words.
Judging by his writing ability, one can’t be entirely sure Mr. Thompson even understood the decision he read.”
Microsoft word found no grammar errors… but it did have a problem with ‘Barack’ and ‘Obama’. Who can blame it there?
One does not have to be an enemy combatant to wind up detained indefinitely without trial; one only has to be declared an enemy combatant, a declaration which effectively prevents the accused from contesting his or her guilt. Jerry notes that many detainees have been released, with a handful returning to the battlefield against us. But the unwitting implication of his argument is that in many cases the government had decided they had detained for extended periods peoplethey should not have detained. Surely there are others detained under similarly questionable circumstances who have not obtained their release and, in the absence of habeus corpus, are wrongly impeded from doing so.
It is time for the Executuve branch and the Legislative branch to stand up to the courts and re-assert their constitional authority. I am not the first to ask “how many divisions does the supreme court have?”
Simply put, although few believe, This decision should not be obeyed, perhaps before every critical decision on or concerning military matters and foreign affairs the justices should have to walk the bluff overlooking Omaha Beach.
“One does not have to be an enemy combatant to wind up detained indefinitely without trial…”
No doubt. Tens of thousands of Japanese, German and Italian nationals, further tens of thousands of American citizens of Japanese descent, plus all the millions of people who were drafted into the armed forces of the United States during WWII would vouch for that.
neo-cons cant stand this it puts the constitution above the prez .this can not be allowed to happen.this is a nation of law ! at least the ones that work for us ignore the rest ,state rights went out the window with this administration all other “rights”followed .crank up the draft and bomb iran while we still in power call for special powers act to cancel elections this nov .
Any person who doesn’t understand and agree with what Fred Thompson wrote is either very stupid or another Bush hater ot both.
How did we get so many educated stupid people in our country? Oh, that’s right – government schools and liberal professors.
Our country as we know it is under attach from without and from within.
Liberals – be careful what you wish for!
I’m a stickler for lousy grammar and read the above essay more closely.
It’s a well-written piece (to hyphenate or not to hyphenate? voilà la question), and, although a comma or two may have been omitted, I didn’t find “…substituting the possessive for the plural, and misusing words” on the basis of which “Gabriel Fry” attacks Fred Thompson.
Overall, a pretty lame attack, Gabriel.
I can’t imagine a successful impeachment proceeding against any single member of the SCOTUS, but I do hope Ms. Ginsburg manages to stay awake while hearing a case.
MODERATION OR POLITICAL CORRECTNESS?
Fred,
I hope you run in 2012. We will need someone in the White House who understands the true nature and impact of decisions.
Lawyers need work, and if there is no real work, then they’ll find some “make work”.
The entire Guantanamo/detainees brouhaha strikes me as “make work”.
(in post-Taliban Afghanistan, there are even reports that some individuals received payment for “identifying” bad guys who may have been simply in the wrong place at the wrong time, sh!t happens)
Also, our nation is today blessed with a kind of perverse symbiosis between manufacturers of pharmaceuticals, sundry medical devices, industrial equipment and…”the legal profession”.
Legal Eagle eyes are constantly scouring the landscape for faulty devices and substances. At the end of any given long, drawn out “action” (see tobacco litigation) the individuals who wind up most enriched are usually the lawyers themselves.
Doctors are forced to carry egregiously expensive “med/mal” insurance to protect themselves from the legal maw.
Going out on a limb (another one), I believe the United States has more lawyers than all the other countries of the world combined.
More fundamental a piece of unconstitutionality in the Court’s decision, itself, is that they have taken upon themselves (even the ruling’s dissenters) to say that they can declare when we are at war, and when we are NOT.
The Court does not have this power.
Thus, the decision was based on a misreading of their Constitutional domain, and an illegitimate over-reach beyond their specified powers.
They cannot declare that the war (or, technically, the “invasion”) is over.
And their decision is void, thereby.
Did any of you people actually read the decision & dissents? Five Justices have now ignored the Constitution by granting habeas corpus to non-citizens in non-US Sovereign territory. The Constitution grants Congress the power to restrict what the Supreme Court is allowed to rule on. The law that the SCOTUS found “unconstitutional” explicitly stated that the federal court system does NOT have the ability to see these cases. Those five Justices ignored that provision and their Constitutional authority by making this decision.
Our Congress needs to impeach five of the Justices not based on political beliefs, but on their inability to follow the Constitution and the powers it grants them. Do not ever forget that the powers our government has come from that document. Anything NOT granted to the federal government is left to the States and the people (Amendment 10).
Article III, Section 2, paragraph 2 of our U. S. Constitution gives Congress the power to prohibit the Supreme Court jurisdiction over any case. It is called the Exception Clause. If Republicans really had any guts, they would propose legislation to negate this Court decision. Marbury vs Madison in 1803 did not negate this section of our Constitution. When will Congress get some backbone??? Article III concerns the Federal Judiciary and its limits.
Justice Kennedy’s opinion goes on for dozens of pages to detail the history of the writ of habeas corpus, citing several centuries old English cases and even quoting from Black’s law dictionary to define sovereignty, before concluding that the case history does not answer the question of whether habeas relief has historically been available to non-citizens. He then analyzes a post-World War II case which basically reached the opposite conclusion than the majority opinion at great length before dismissing it as inapplicable. And he frequently cites his own dissent in the Hamdi case as authority in this case. Reading the opinion makes me think that Justice Kennedy was just looking for any opportunity to revisit Hamdi and stick it to the majority in that case. The basis of his opinion seems to be that there is no precedent that says I can’t do this so I think I will. I have a strong suspicion that if I had written a brief similar to this one in law school, I would have received an F.
On the other hand, Justice Roberts points out in his dissent that the majority completely overlooked the fact that not only had Congress set up a system of military tribunals ostensibly in compliance with the Court’s ruling in Hamdi but that it had also set up a review process in the DC Court of Appeals. As Justice Roberts points out, the majority decided this case without even requiring the petitioners to exhaust all of their appeals remedies provided under the existing law, which is basically unprecedented.
The bottom line is that I have read many Supreme Court decisions and like so many others, this one is going to satisfy the proponents of the issue and enrage the opponents. Supreme Court opinions frequently do. However, I cannot remember reading such a poorly rationalized majority opinion. It was clear to me that the majority decided what it was going to do and did it. Ironically, there are numerous references in the majority opinion to the Executive and Legislative branches being the “political branches” with the implication being that the Judiciary is above politics. Unfortunately, this opinion convinces me more than ever that it is not and we should quit perpetuating that myth.
I find it amazing and appalling how many people are up in arms about this decision. Either they don’t understand it, or they haven’t thought about it. Or perhaps they don’t really care about our Constitution or liberty.
Of course, the Court didn’t help things by writing a 158 page decision. It could have been written in less than half a page. Perhaps if they had written the following, this controversy would have been avoided:
The United States government was created by the Constitution. The government is required to follow the Constitution at all times and under all circumstances.
The Constitution clearly says that the Congress may only suspend habeas corpus if the United States is being invaded or undergoing rebellion and even then they may suspend it only to the extent necessary for public safety. The United States is not being invaded or undergoing rebellion. Therefore, Congress has no authority to suspend habeas corpus.
On the question of jurisdiction, it is well settled law that Congress may not use their authority to set the jurisdiction of the courts to shield an otherwise unconstitutional law from review. This would make a mockery of the limits imposed by the Constitution.
Some may argue that this decision may have a detrimental effect on the country’s ability to wage war. This argument is not persuasive for a number of reasons. (1) Congress has not declared war and therefore the question does not arise in the instant case. (2) In the event of a declared war, the government would need only refer to the declaration of war in response to a writ of habeas corpus. (3) The government must obey the Constitution even in war. Since the Constitution does not list war as a condition under which habeas corpus can be suspended, we must conclude that the government cannot suspend habeas corpus even for prisoners of war.
I didn’t read the decision, (comma conscious here, thanks to Gabriel) because I’m not fond of reading many pages’ long convolutions.
I believe it is as “Sean” has written it is…
The basis of his (Justice Kennedy’s) opinion seems to be that there is no precedent that says I can’t do this so I think I will…It was clear to me that the majority decided what it was going to do and did it.
I’d be hard pressed to believe “The Founders” considered that habeas corpus applied to anything but US citizens, as they used the term in Article I, section 9.
Although, undoubtedly, there has been much legal (and legalistic) wrangling in the intervening years around the applicability of the protection.
Corbett,
You apparently have not read the Constitution. Article I, Section 8, Clause 11 states that Congress has the power “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; ”
That means Congress can make the rules and not the SCOTUS. That can mean property and people (combatants).
As for habeas corpus, Congress may suspend it for the public safety. It is not a condition to invasion or rebellion, it is its own clause. If Congress believes it is prudent to suspend habeas corpus for the public safety, it may do so.
Most people have this belief that the different branches are “equal”. It is not so and was not meant to be that way. Congress is supposed to have more power than the others, but it cannot have all power and needs some limits, hence the separation of powers. The Founders intended most of the government’s function to be directed by Congress because they represent the will of the states & people more than the other branches.
As to the government must follow the Constitution during times of war, tell that to Lincoln when he suspended habeas corpus during the War Between the States and the SCOTUS that allowed the state of West Virginia to be created. Both of those acts violated the Constitution directly, yet it was done anyway using war as an excuse.
Having actually read the decision, I don’t think most people actually understand what the majority decided. They did not invalidate Congress’ suspension of the writ of habeas corpus for the detainees in Guantanamo Bay. They granted the privilege to a class of people who had never been found to have the privilege in the first place until this decision when by Justice Kennedy’s own admission there is no history or precedent that such class was ever anticipated to enjoy the privilege.
“Either they don’t understand it”
Hell, everyone understands it. When the Democrats are running the country, Japanese children have the right to be incinerated by atomic bombs to make the world safe for Democracy (or whatever the reason was), and when the Republicans are running the country, Al Qaida terrorists have the right to file writs of habeas corpus so that the evil Republicans won’t deny them their god-given right to liberty.
I understand perfectly.
Sean has obviously actually read the decision, which is apparently unusual. More people should read it, although you could be forgiven for skimming through the long and meandering majority opinion. I don’t think I could improve on Sean’s summary above at 8:32 am.
The most disturbing thing about the opinion is that the Court made it very clear that any law passed by Congress can be rejected by the Supreme Court, and any action taken by the President can be overruled by the Supreme Court. Even though the Constitution very clearly gives Congress the right to limit the jurisdiction of the federal courts, including the Supreme Court, the Supreme Court ignored that they had no authority to decide the issue and threw out the law restricting their jurisdiction. They also threw out in a single step the system of tribunals and appeals set up by Congress, and said that any detainee could file a habeas corpus lawsuit at any time without having to go through the military tribunals and appeals process.
In short, the Supreme Court is truly Supreme above both Congress and the President.
As has been said before, a true power grab.
The other thing that sticks with me is the hypocrisy of the Court piously declaring how vital it was to limit the power of the President and Congress, but refusing to accept any limitation of their own power.
“Petitioners present a question not resolved by our earlier
cases relating to the detention of aliens at Guantanamo:
whether they have the constitutional privilege of
habeas corpus, a privilege not to be withdrawn except in
conformance with the Suspension Clause, Art. I, §9, cl. 2.
We hold these petitioners do have the habeas corpus
privilege.”
That’s the only part of the decision you need to read, the rest of it is a bunch of blather, and the decision itself is absolute nonsense.
No, foreign nationals in time of war do not have the privilege of habeas corpus, they don’t have the right to keep and bear arms, they don’t have the rights described in the 4th amendment, they don’t have any rights under the Constitution.
If they did have those rights and privileges, we wouldn’t be able to fight a war. For example, it really wouldn’t be practical for us to get a warrant every time we wanted to take some terrorists or guerrillas captive.
The whole reason we have special laws and customs of war that describe the rights and privileges of foreign nationals (like the Geneva Conventions) is because the ordinary laws of a nation don’t extend to foreign nationals during wartime (duh!), so we need special laws to cover that situation.
The SCOTUS is completely full of crap, and what’s disturbing is is that they know damned well that what they’re saying is a bunch of nonsense, but they’re going to say it anyway, just so they can stick it to Bush, and if that causes Americans to die (because some nitwit judge releases a terrorist), they just don’t give a damn. The important thing isn’t to protect the rights of American citizens (like the right not to be killed by an Al Qaida terrorist), to them the important thing is to interfere with Bush’s ability to effectively wage war against our enemies.
They suck.
The constitution gives the specific power to suspend habeas corpus (Section 9, Clause 2)and to make rules concerning POWs (Section 8, Clause 11) to the congress. It is clear the court has over stepped it’s authority and should be ignored.
What the people need is to have each court decision reviewed by their reps (the house) and the house should be able to accept or reject the court’s rueling. If rejected, the court would have to re-do thier findings. The house couldn’t ammend them. If the elected congress can over turn the elected president’s veto, why can’t or shouldn’t they be able to do the same to the appointed court? I know that means an ammendment and I’ve called and written my rep and both senators. How about you?
An additional thought, We the people of the United States means Americans and the Constitution only protects Americans’ rights. It doesn’t say We the people of the entire world.
Anthony Kennedy and the 4 SCOTUS libs swept aside the sovereign territory requirement of the Suspension Clause and left only “de facto” sovereignty as the constraint on habeas access by enemy aliens to US civilian courts.
GITMO is just a US military base. It’s not sovereign US territory.
The US exercises “effective and indefinite” control there, which is Anthony Kennedy’s functional test requirement for access to US courts by enemy aliens.
The US is building a large prison in Afghanistan to house unlawful enemy combatants. It seems that the US will have “effective and indefinite” control there at this new prison and seemingly at any US military base abroad. Thus “de facto” sovereignty and thus access to US civilian courts by unlawful enemy combatants seems assured there by Anthony Kennedy.
So, expect these unlawful enemy combatants to ask for their ACLU lawyer as soon as they are brought onto a US military installation abroad, so they can file their habeas petition and avoid having unlawful enemy combatant status anymore, but rather the presumption of innocence and due process rights to confront the sensitive classified information against them and pass that onto Osama.
Of the 10000 or so enemy combatants captured in Afghanistan, only 770 or so were transfered to GITMO. A small number came from Bosnia, such as Boumediene, an Algerian. Since we know that some of the foreign fighters showing up on the Iraq battlefield came from North Africa, why were Algerians showing up in Bosnia, where AlQaeda was present in the civil war that we intervened and stopped? They were foreign AlQaeda fighters too.
We are down to only 270 now. 500 have already been released from GITMO.
All of these 270 were adjudicated to be enemy combatants with the US Military deciding they were likely to reappear on the battlefield.
Keeping enemy combatants off the battlefield is sufficient reason to detain them. you are not required to charge them with war crimes.
Libs don’t seem to understand how wars are fought.
Of the 270, 200 have filed habeas petitions.
Do you think that 200 of the 270 were cab drivers or just in the wrong place at the wring time?
The bulk of the 200 are certain to be IslamoNazis.
So Anthony Kennedy has bestowed the presumption of innocence on IslamoNazi unlawful enemy combatants and usurped US National Security policy on unlawful enemy combatants from the US Military, their Commander-in-Chief and Congress and handed it to Judges and Law Clerks and the ACLU.
Of the 500 already released, because they were deemed less of a threat than the 200 with habeas petitions, more than 30 have returned to the battlefield and killed innocent people, as pointed out by Justice Scalia.
So Anthony Kennedy has given the presumption of innocence to AlQaeda killers.
Justice Roberts walked through the DTA system crafted by the Executive Branch and Congress, which Kennedy did not, and showed that it gave these detainees multiple and continuous opportunities to prove they were no longer security threats, far exceeding anything even lawful enemy combatants held by the US has ever received, or that captured US military could receive under the Geneva Convention.
That’s not good enough for Libs.
They need to bash Bush and coddle AlQaeda.
One of the main reasons for not allowing detainees access to US civilian courts cited in Eisentrager was that the detainees could ‘diminish the Commander-in-Chief’ in time of war.
The SCOTUS Libs already took care of that for AlQaeda.
That’s why they’re known as the “Jihad 5″.
All you libs out there, including the salivating lawyers, where in the Constitution does it say it applies to the citizens of the world?
Just a question here. Does anyone know if military personnel assigned to Guantanamo who are charged with a criminal act under the Uniform Code of Military Justice and tried in a military rather than a civilian court are currently entitled to habeas relief during their detention? Remember “A Few Good Men”?
“Just a question here. Does anyone know if military personnel assigned to Guantanamo who are charged with a criminal act under the Uniform Code of Military Justice and tried in a military rather than a civilian court are currently entitled to habeas relief during their detention?”
Yes, the military court system employs writs of habeas corpus. Also, the SCOTUS has jurisdiction over the appeals process in certain circumstances and filing a writ of habeas corpus would be one method to get them to review a case.
The majority Justices on our Supreme Court only think they have the last word here. But they don’t, really. These black-robed, ivory tower eggheads haven’t served in the armed services or apparently, even read any military history. They haven’t been to basic training, let alone a war zone, and they apparently think that a war is like an exchange of legal memoranda. Well, guess what. The sergeants, corporals and privates on the front lines have the last word here, and whenever they can, they will overrule the Supreme Court by taking no prisoners if the Captain isn’t looking–and the Captain won’t be looking. It’s that simple. Allah had better get busy creating a whole bunch of virgins to service all guys who will be KIA’s when the could have been POW’s.
What this decision means is that we now need a “surge” of 30-40 thousand lawyers to Iraq and Afghanistan so that they can determine if/when our soldiers can return fire or capture combatants (er…innocent civilians). They can also stick around the battlefield and collect all the evidence needed for a conviction so our troops don’t have to.
I certainly hope that decisions like these do not cause out troops or their leaders to hesitate in their decision making on the battlefield because that hesitation will surely cost us more American lives.