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: