Supreme Court Flexes Its Muscles in Boumediene Decision

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.