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.
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.
But ultimately accounts will not be settled. The reason is that although the Court wants, as the chief justice said, control over federal enemy combatant policy, it does not want to be accountable for it. Even Justice Kennedy — best understood as a kind of General MacArthur who cannot, however, be fired — must at some level fear going where his logic implacably leads, to the release of many, many more remaining Guantanamo detainees and granting habeas rights and, as Justice Scalia remarked, eventually other Constitutional rights as well, to practically anyone detained abroad by a U.S. officer, soldier, or agent for more than a de minimis period of time. Even Justice Kennedy must have some concern about the Court too directly sowing the seeds of a future bloody attack upon the United States and bearing political responsibility for it. How to deflect responsibility from the Court?
Well, 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. Nor does the Court have to order people released from Guantanamo to generate enormous political pressure for the executive to do it on its own; Hamdan, and Rasul before it, each generated waves of releases without any order to do so and thus without the Court’s visible fingerprints.
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.
But just possibly, against all type — who knows? — Justice Kennedy’s deepest agenda is a fantastically clever double one. On the one hand, to humiliate the executive and humble it, putting it through loss after loss before the Court, unable to come up with a satisfactory process. On the other, simultaneously to force the process of individual habeas through years and years and years and years of multilevel review, remands, reconsideration, harmonization with other courts, Supreme Court review and remand — but keeping most remaining detainees off the streets for a long, long time, while yet impeccably and proudly bearing the banner of the rule of law, sanguine in the full approval of the Guardian and the New York Times and “all good-thinking people.”
This is, by the way, approximately what happens in “progressive” and “enlightened” Europe, in which investigating magistrates detain people — the 2004 Madrid bombing, for example — and hold them for years and years as the wheels of justice ever so slowly crank forward. It amounts to preventive security detention in practice while avoiding the political problems of openly declared security detention by political, rather than judicial, decision. But in that case, the question is that posed by the chief justice: are politics worthy of Talleyrand, Metternich, or Kissinger appropriate to the judicial branch? Is our Justice Kennedy capable of such deviousness? And should he be?
Correction: The original text read, referring to the passage of the MCA in 2006: “A Democratic Congress and a Republican president duly did so …” However, as a commentator pointed out, although Democrats won the 2006 midterm elections, the new Democratic Congress did not enter until 2007. The MCA was thus passed by a Republican Congress, and the article has been amended to take out references to parties of either Congress or the administration.