Moreover, the as-yet-unknown meaning of Boumediene beyond the special circumstances of Guantanamo — as Wittes says, an “American military facility located permanently in a hostile country yet leased in perpetuity to exclusive American jurisdiction and control” — might turn out to have much greater long-term importance. Consider foreign fighters who came to Iraq specifically to wage jihad against the Americans and Iraqi government as part of al-Qaeda in Mesopotamia or other groups — they are coming in far fewer numbers now as General Petraeus’s counterinsurgency strategy has paid off and as they pay the price for their brutality toward Iraqi Sunnis. Still, the U.S. has taken some number of these fighters into custody, and will certainly do so in the course of the fighting: whether held by the Americans or by the Iraqis, releasing these jihadists is a fantastically bad idea, the seeds of future violence and instability in Iraq and suicidal attacks against America and Americans down the road. Do the federal courts propose to wade into these matters, too? But Iraq is a “real” war, you say, and the ordinary rules of the laws of war apply to it; the war against terrorism is something different. But why? There may be “innocent shepherds” among the foreign detainees in Iraq, under the exclusive command and control of the United States, and why, morally and legally, should their claim to habeas be any less than at Guantanamo?
It is as though the Boumediene majority somehow does not believe any of this has anything to do with, well, war and, to the extent that it is about war, the Court seems to be marking out a long-term trajectory of forcing a reconception of war, even combat, as a form of police work. Prior to Boumediene, I would have said that the Court’s main concern has been that the war on terror is not “war” in the traditional sense, operationally or legally, and that just because the political branches call something war does not mean it actually is war, at least not if a consequence is the executive’s ability to detain anyone — which is where the administration started out, back with Jose Padilla, a U.S. citizen — as any enemy combatant solely on its say-so. If habeas did not apply to that claim of executive power, what was it good for? It is a fair question, but one that, as the chief justice noted in his dissent, is covered not just for citizens but even for aliens, by the MCA and DTA. Why the need to go beyond those? After Boumediene, it would seem to matter only if you see this as part of a larger project to carry the Constitution abroad, insofar as American agents and military act beyond U.S. borders, and to transform warfare into a species of large-scale law enforcement. If you are required to collect and preserve evidence in order to be able to hold alien security detainees picked up in foreign war zones, after all, war has become a very different activity.
In the more immediate term, whether one sees the U.S. response to terrorism as war or not largely determines one’s legal views and policy responses. Justice Kennedy and his confreres are willing to treat the whole matter more or less like just another form of litigation for the courts to gradually work out because they do not see war as much other than a blind by the Bush administration, or else a non-global war on terror that has resulted in two actual wars, Afghanistan and Iraq. For the Court’s dissenters, the global war on terror, including its detentions at Guantanamo, is genuinely war, with all the attendant legal consequences. This is the difference between the two sides that determines all the others — that, and the refusal by the Court to defer to the political branches when they determine that the nation is at war. There are, as Wittes and a handful of others have pointed out, alternative ways to address the strategic question of a war on terrorism that do not require a stark, absolute yes or no, legal response in each case, war or not war. This is where the national discussion of responses to terrorism needs to go in the future, and Boumediene is an unfortunate impediment to getting there.
If it is a war, then the obligation of judicial deference is, or anyway used to be, at its maximum. Chief Justice Roberts, in dissent, therefore acidly noted that after solemnly instructing the two political branches in Hamdan to come up with a process (which they faithfully did), the Court threw it (and them) overboard with scarcely a backward glance at judicial deference. A game of “constitutional bait and switch,” the chief justice said. And, we might add, this game need not stop with Boumediene. Look for the Court to change the rules in the next case, and again in the case after that, ad infinitum. 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”?
Releases from Guantanamo — as Justice Scalia noted to much scoffing by the left — even releases done by the U.S. military itself, have already cost lives. A Kuwaiti citizen was freed from Guantanamo only to blow himself up in Iraq a few weeks ago, killing several Iraqis. The victims of those released from Guantanamo who return to the fight have largely been, and are likely to continue to be, mostly Iraqi or Afghan, not American. Justice Kennedy is a human rights universalist — habeas corpus for aliens as for citizens, contrary precedents like Eisentrager be damned. And yet Afghan and Iraqi lives apparently are at a steep discount in the Boumediene majority’s weird, morally preening settling of accounts between liberties and security; so too, eventually, are American lives.