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| The Supreme Court Made a Mistake in 'Boumediene' |
| 2008-06-20 |
| By Glenn Sulmasy The Supreme Court's 5-4 decision in Boumediene v. Bush last week justifiably sent shock waves through the legal community. The majority opinion, authored by the ever wandering Justice Anthony Kennedy, disregarded both centuries of precedent and the military deference doctrine and also intruded on what is clearly the province of the political branches. As a result of this case, Guantánamo Bay detainees now formally have more rights than do prisoners of war under the Geneva Conventions. To say the least, citizens, regardless of political affiliation or views of the status of Guantánamo, should be concerned about the ramifications of this decision. Precedent. The Boumediene holding permits aliens to exercise constitutional rights within U.S. courts of law. This has never been the policy of the United States, nor has the court ever granted such rights to those detained outside of U.S. jurisdiction. Additionally, it should be noted that this is the first of the Supreme Court cases since the attacks of 9/11 that actually declares that the military commission process contains a constitutional violation. While many on both sides of the aisle believe that Guantánamo and the military commissions might be flawed as a matter of policy (and, some say, of law) and think it is in the best interests of the nation to close Guantánamo, this case actually goes further and will have greater impact than if the commissions themselves were found to violate the Constitution. Justice Kennedy went to lengths to limit the decision to only those detained at Gitmo now, but his decision clearly will be analogized by some to other military bases overseas (e.g. Afghanistan) where detainees are held. The practical effect of flooding an already overburdened federal court system is more than likely. These detainees will not only have access to federal district courthouses but will gain the rights of American citizens to challenge their cases within the United States. One can only imagine further unprecedented constitutional challenges, such as applying the Fourth Amendment and the Fifth Amendment to the detainees, arguing these provisions of the Constitution apply to those searched or captured on the field of battle. This is not a stretch but a frightening, arguably unintended consequence of the decision. Military deference. Boumediene has removed the military from the habeas corpus process altogether. Few will doubt we are a nation at war, and the military is detaining and adjudicating, through the military commissions, those unlawful combatants accused of war crimes. Under the holding, however, only civilian federal judges (without any opportunity for the military to formally review or determine the status of those they detain) within the district courts will decide whether or not to issue a writ of habeas. Ordinarily, courts refrain from interfering with ongoing military operations or policy decisions and have repeatedly refrained from intruding in this arena if at all possible. In Boumediene, the Supreme Court has inserted itself and removed the military altogether from the habeas process. Strangely, Justice John Paul Stevens had asserted in Hamdan v. Rumsfeld that the Uniform Code of Military Justice should be applied to these detainees. Boumediene disregards Hamdan and the code completely for determining lawfulness of detention. Additionally, the court has intruded in what the Founders clearly intended to be decisions best left to the political branches. With so much angst over executive power in the past few years, one hopes reasonable minds will recognize this overreach by the court. Clearly, Congress and the president are better able to make these decisions. Prisoners of war. Ironically, the holding affords greater protections to the alleged unlawful belligerents than prisoners of war are entitled to under the Geneva Conventions. This absurdity should be shocking to the American citizenry. POWs are supposed to receive the "gold standard" of treatment, but it was never envisioned to permit such access to the domestic courts of the detaining country. The detainees, of course, are not even signatories to the tradition of the Geneva Conventions. But now nine unelected, life-tenured justices have determined that someone such as Khalid Shaikh Mohammed should be given access to our great courts of justice. If such a policy decision is to be made, it needs to be made by our elected representatives who have the voice of the people. The inaction on such concerns by the political branches should not be the catalyst for the Supreme Court to intervene—particularly when such decisions impact a nation at war. Rather than argue back and forth on the case, however, policymakers must quickly review the implications of the decision and find mutual ground on how best to proceed. The political branches must seek a third way—neither the existing federal courts nor the military commissions but a specialized hybrid court with civilian oversight (often called a national security court)—as the best means to balance the interests of both national security and human rights. Such a federal terrorist court could be structured to better meet the policy concerns of many both in America and abroad: to detain and adjudicate cases against unlawful belligerents in the war on al Qaeda. Boumediene, for all its faults, might just be the catalyst necessary for such action. Glenn Sulmasy is a national security and human rights fellow at the John F. Kennedy School of Government at Harvard University and an associate professor of law at the U.S. Coast Guard Academy. |
| Posted by:Steve White |
| #7 The "crisis" is best found in Scalia's comment in dissent - "we were just kidding" in reference to the prior holdings which led to this one. They led from the POTUS, through the congress, after the Hamdan rulings - all of which brought the other branches, arguably properly into their roles. The problem with this decision is the destruction of the confidence of the people in the court. Hence, when the court rules, is it "just kidding"? How will it, and the lower courts, handle all the certain to follow subsidiary actions from this ruling? How can it maintain any level of consistency? And, ultimately, as Stalin asked the Pope, if it's on the path to blurring or elminating the distinction between military and civil legality, how many divisions does it have to enforce its writ? Not a good opinion, and far less open to remediation or qualification than the Kelo opinion. |
| Posted by: Harcourt Jush7795 2008-06-20 22:47 |
| #6 IMO, it was no mistake. |
| Posted by: g(r)omgoru 2008-06-20 09:54 |
| #5 EJ3058: All the more reason why John McCain must be the next President. |
| Posted by: McZoid 2008-06-20 07:37 |
| #4 Reminder: habeas corpus will work on a reverse onus basis. Suspects will have to show cause in order to secure release. However, the fact that this junk was tossed prior to Summer recess, is suspicious. And elections will be on the mind in the Fall. Remember how the slave-owner of the Taney court, upheld recovery of escaped slaves, by finding the negro to be "an inferior sort of being." (Dred Scot, 1857, SCOTUS)? |
| Posted by: McZoid 2008-06-20 07:36 |
| #3 There is now the possibility of a Democratic Congress and Presidency, followed by the resignation of the older SC justices, and installation of a couple or three reliably leftist justices. That would ensure the continuation of the leftist project of using lawfare to hamstring the ability of the executive to conduct war. And of course also the continuation of the process of dismantling the Constitution in general. |
| Posted by: Elmavirong Johnson3058 2008-06-20 07:08 |
| #2 Acting together, the Executive and Legislative branches can ignore the Judicial. The USSC doesn't have any way to enforce it's decision - by design. |
| Posted by: mojo 2008-06-20 01:48 |
| #1 While correct in most particulars, I think this piece grossly understates the problem. This is nothing less than a full-blown constitutional crisis, verging on a constitutional break-down. The court is way out of its lane, and has usurped in its various Gitmo-related decisions both the treaty power and the authority to conduct war. That the administration immediately and meekly complied with the ruling does not mask the problem. No one wants to admit how bad things are, because everyone lacks the guts and vision to do anything about it. Instead, as in this piece, they scramble to improvise some new mechanism. The astonishing misbehavior of the court in these rulings, which Chief Justice Roberts termed "bait-and-switch" and Justice Scalia branded as outside the law, is actually a secondary matter - though grave enough in itself to raise basic institutional questions. The primary problem is the collapse of the basic constitutional framework with three co-equal branches, each with different powers - including the well-established authority of the executive to conduct war and the expressly assigned authority of the legislature to limit the courts' reach. I'm no constitutional expert (though grimacing through the idiotic things Sen. Obama says about the constitution makes me feel like some sort of friggin' Felix Frankfurter) - but there's more than just bad faith and horrible reasoning at issue here. The rule of law is absolutely in question in the US. The cowardice and mediocrity of the current political class leads me to think that the lawless situation will continue indefinitely. Disgusting, infuriating, and amazing. |
| Posted by: Verlaine 2008-06-20 01:05 |