The courts follow the flag

Liberals may not be overjoyed with what they view as the imperial overreach of our military, but they certainly don’t want our imperial judges to miss out on the adventure. Thus, as Robert Haddick explains, lawyers for terrorist detainees are insisting (in cases like Boumediene v. Bush) that the Supreme Court extend the judicial power of the United States into the territory and affairs of other nation-states.
Prior to 2004, U.S. courts were not thought to have the authority to issue writs of habeas corpus beyond the sovereignty of the United States. But that year, in Rasul v. Bush, the Supreme Court ruled that its authority extended onto the Guantanamo Bay naval base, in Cuban territory, because the U.S. government exercises “exclusive jurisdiction and control” over that piece of land. Now, lawyers for detainees are arguing that the power of U.S. courts extends into any part of the world, provided that lawyers can convince judges, based on a flexible “multi-factor” analysis, that the U.S. exercises “sovereignty” over a given parcel of land. As Haddick puts it: “One wonders whether in the future the court will declare the dirt under the feet of a four-man U.S. Marine reconnaissance patrol in Afghanistan’s mountains under U.S. ‘control’, entitling an Al Qaeda fighter they may stumble across to a habeas corpus petition.” If a court doesn’t so declare, it won’t be due to a lack of fancy American lawyers urging it to do so.
Moreover, as Chief Justice Roberts noted during oral argument in Boumediene, a court’s determination as to whether the U.S. exercises the requisite control over foreign territory would “have diplomatic consequences” inasmuch as “it is. . .typically an act of war for one country to assert authority and control over another country’s jurisdiction.” The executive branch would be left to deal with the consequences of the sovereignty claims asserted by unelected judges.
Haddick argues, however, that the executive branch will not let things come to that:

In the future, no U.S. president would ever contemplate bringing war prisoners to the United States, to Guantanamo Bay or any other place that the U.S. court system might see fit to get its hands on. In fact, the U.S. military could find it preferable, at least less legally bothersome, to “subcontract” such things as prisoner-holding and interrogations to allied countries, or, where none are available, friendly tribes and militias. And if this doesn’t reduce the legal nightmare caused by capturing detainees, the U.S. and its tribal allies might just be inclined not to take any prisoners. Why use rifles and pistols to raid a suspected terror safe-house when a laser-guided bomb will do? Such a practice would reduce the amount of intelligence U.S. military units might have otherwise received from live detainees. Or maybe not, if some judges feel especially inclined to micromanage the war effort.

In other words, five Supreme Court Justices may have the raw power to leave a footprint on the global war in which we’re engaged, but they lack the power to determine the final shape of that footprint


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