Supreme Court Flexes Its Muscles in Boumediene Decision
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.
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?
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.
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?”
The solution is simple — give the Supreme Court exclusive jurisdiction over all habeas corpus claims.
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.
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?
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.
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.
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.
The United States Supreme Court is in dire need of 9 Clarence Thomas’s.
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.
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?
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.
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.