U.S. loses the Boumediene case

As expected, the Supreme Court has ruled by a vote of 5-4 against the government in the Boumediene case. In essence, as I understand it, the Court decided that the Military Commissions Act of 2006 is unconstitutional. Apparently, Justice Kennedy and his four liberal colleagues concluded that denying federal court jurisdiction over detainee habeas claims amounts to an unconstitutional suspension of the detainees’ habeas rights.

Kennedy’s opinion and the dissents by Chief Justice Roberts and Justice Scalia can be found here.

UPDATE: Justice Scalia characterizes the decision this way:

Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.

It strikes me as odd to confer such a right, but then I haven’t read Justice Kennedy’s opinion yet.

As a general matter, the fact that al Qaeda and other groups have decided to wage an extended war against the U.S. places us in the position of having, in a variety of contexts, to balance our concerns about national security against our desire to protect individual rights. The political branches may well tend to err on the side of vindicating security concerns. This may be particularly true of the executive branch, which contains the military services. These services exist above all to protect the nation’s security, and are trained accordingly.

The Supreme Court has assumed the role of ultimate arbiter of competing claims of security interests and individual rights interests. For the reasons noted above, there’s a case to be made for having such an arbiter. The problem is that judges (i.e., ex-lawyers) are no better positioned fairly to balance the competing interests than the political branches are. These days, lawyers are trained to obsess over individual rights and access to legal process. They have no expertise in national security issues and are not answerable to the electorate for failure to pay sufficient attention to security concerns.

Even before the recent spate of court rulings in this area, then, there was every reason to suppose that judges would err on the side of granting rights and process to our enemies. This likelihood increases with every year in which (thanks to the aggressive measures taken by the executive branch to protect our security) we have not been attacked at home.

It is the natural tendency of judges to rule in favor of extending legal process, coupled with the success of the administration in protecting the nation from attack, that probably explains why Justice Kennedy and his four liberal colleagues took the unprecedented step of conferring a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.

MORE: Here is an excerpt from Chief Justice Roberts’ dissent:

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.


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