Boumediene the day after

In one sense, the Supreme Court’s 5-4 decision in the Boumediene case granting foreign terrorists detained in Guantanamo access to the federal courts and the right of habeas corpus was predictable. It was predictable in the sense that the majority opinion extrapolates on the Court’s war-on-terror jurisprudence. Stepping back a bit, however, the decision appears bizarre. I am not an expert in the applicable law and tentatively offer the following observations, subject to correction, without getting into the fine points of habeas doctrine debated in the Court’s opinions in the case.

1. What Warren Court liberals did for the common American criminal, the Court’s current liberals are in the process of doing for foreign terrorists captured or held by American forces around the world.

2. The extension of constitutional rights to detainees at Guantanamo is premised on the government’s de facto control over the territory. The Court leaves the concept of de facto control open for further development in the future on a case-by-case basis. The Court has opened the floodgates to a vast and untoward expansion of federal jurisdiction on behalf of foreign terrorists.

3. In setting up the detention facility at Guantanamo, the Bush administration reasonably relied on the Court’s decision in Johnson v. Eisentrager. In Eisentrager the Court held that nonresident enemy aliens have no right to seek relief in the federal courts in wartime. The Court does not expressly overrule Eisentrager in Boumediene, but Boumediene cannot fairly be reconciled with Eisentrager. The distinctions drawn by the majority between Eisentrager and Boumediene in part IV of Justice Kennedy’s opinion are remarkably unpersuasive. The unpersuasiveness of this crucial part of the opinion shows the Court, rather than the Bush administration, to be acting arbitrarily.

4. The Court treats the difficulties created by its assertion of federal jurisdiction over areas other than the battlefield with a blasé carelessness that is shocking. “[C]ivilian courts and the Armed Forces have functioned along side each other at various points in our history,” Justice Kennedy writers. “The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiciton to hear the detainees’ claims.” No problem!

5. Justice Kennedy concedes: “It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the case before us lacks any hisotorical parallel.” Why? Because the war “is already among the longest wars in American history.” Why is that relevant? In past wars, were the Court’s wartime decisions premature? Should they have been held in abeyance so that the duration of the conflict could be ascertained? The Court of course does not even explore the issue.

6. “The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government.” The concept of “complete and total control” is left open for future development by the Court. As Justice Scalia notes in dissent, “it clears a wide path for the Court to traverse in the years to come.”

7. The Court’s decision leaves the government with options to avoid the federal courts. Congress has the power under the Constitution to suspend the privilege of habeas corpus in cases of rebellion or invasion (but one is unsure whether that too is subject to judicial review). The military may be able to hold detainees abroad in territory that leaves less argument about the de facto control of the United States. The government may turn the detainees over to foreign countries for interrogation or detention.

8. As Paul Mirengoff and I noted in “From Hegel to Wilson to Breyer,” Supreme Court opinions in the recent past have cited if not imported foreign law into American constitutional law for the purported benefit of American citizens. Boumediene reverses the process, exporting American constitutional law to territory arguably under the de facto control of the United States for the benefit of foreign terrorists.

9. Justice Scalia notes in his dissent that the Court’s decision is difficult to reconcile with American history as well as its own precedent:: “The category of prisoner comparable to these detainees are not the Eisentrager criminal defendants, but the more than 400,000 prisoners of war detained in the United States alone during World War II. Not a single one was accorded the right to have his detention validated by a habeas corpus action in federal court—and that despite the fact that they were present on U. S. soil.”

10. Boumediene works a vast expansion of the wartime power of the federal courts and, ultimately, of five members of the Supreme Court. By the same token, it contracts the power of the elected branches of government to provide for the common defense. With respect to the executive in particular, Hamilton’s comments in Federalist 69 are suggestive in this context: “Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.” We will have occasion to regret the Court’s handiwork in Boumediene for years to come.

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