It's hard to summarize a decision as long and complicated as the Supreme
Court's 5-4 ruling last week in Boumediene v. Bush. But we can
try. Unprecedented. Reckless. Harmful. Breathtakingly condescending.
The Court, in an opinion written by Justice Anthony Kennedy, ruled that
non-citizens captured abroad and held in a military installation overseas--the
remaining 270 or so inmates at the terrorist prison in Guantánamo
the same constitutional right as U.S.
citizens to challenge their detention in court. Furthermore, the current
procedures by which a detainee's status is reviewed--procedures fashioned in
good faith and at the Court's behest by a bipartisan congressional majority in
consultation with the commander in chief during a time of war--are
The upshot is the prisoners at Camp
Delta can now file habeas corpus
petitions in U.S.
district courts seeking reprieve. Hence lawyers, judges, and leftwing interest
groups will have real influence over the conduct of the war on terror. Call it
the Gitmo nightmare.
As it happens, some of the most effective arguments against Boumediene
come from the decision itself. For example, Justice Kennedy wrote that in cases
involving terrorist detention, "proper deference must be accorded to the
political branches." Then he overrode them.
Kennedy further noted that "unlike the President and some designated
Members of Congress, neither the Members of this Court nor most federal judges
begin the day with briefings that may describe new and serious threats to our
Nation and its people." They had better start, because the courts are
about to be flooded with petitions to release terrorists sworn to America's
He also wrote that now the "political branches can engage in a genuine
debate about how best to preserve constitutional values while protecting the
Nation from terrorism." But that is precisely what Congress and the
president were doing when they passed legislation laying out a process for
detainee review, one that in fact addressed concerns previously raised by the
Court. The Court now says this process is inadequate. What would be adequate? Kennedy's
answer: I'll get back to you on that.
In his opinion, Kennedy conceded that "before today the Court has never
held that non-citizens detained by our Government in territory over which
another country maintains de jure sovereignty have any rights under our
Constitution." Inventing rights seems to be what some of today's Supreme
Court justices do best. In 1950 the Court ruled in Johnson v. Eisentrager
that foreign nationals held in a military prison on foreign soil (in that case,
Germany) had no
habeas rights. But, without overruling Eisentrager, Kennedy said
the Guantánamo detainees are different from the German prisoners 58 years ago.
Why? Kennedy wrote that Eisentrager had a unique set of
"practical considerations," and the United
States did not have "de facto"
sovereignty over Germany
as it does over Guantánamo Bay.
That territory, "while technically not part of the United
States, is under the complete and total
control of our Government." But these slippery distinctions only raise
more questions. Doesn't the United States
government exercise "complete and total control" over its military
and intelligence facilities worldwide? If so, what's to stop foreign combatants
held in those locations from asserting their habeas rights?
And what precise form will these habeas hearings
take? What standards of judgment are the courts to apply? Will plaintiffs'
attorneys be allowed to go venue shopping and file their petitions in the most
liberal courts in the nation? Will they conduct discovery? Will they recall
soldiers and intelligence agents from the field to testify? What happens when
the available evidence does not satisfy judges who are used to adjudicating
under the exclusionary rule? Will the cases be thrown out? Will the detainees
be freed, able to return to the battlefield? That, after all, is what some 30
released detainees seem already to have done.
The Supreme Court does not worry about such things. Instead it piously
reminded the people that "the laws and Constitution are designed to
survive, and remain in force, in extraordinary times." No kidding. Has
anyone ever argued otherwise?
Kennedy's sanctimony points to the ultimate tragedy of the Boumediene
mess. In their visceral, myopic hatred of President Bush, liberals will see the
ruling as a blow to the president and not the broad, foolish, and dangerous
judicial power grab it is. The New York Times's editorialists wrote that
"compliant Republicans and frightened Democrats" allowed Bush to deny
foreign enemy combatants during wartime "the protections of justice,
democracy and plain human decency."
Give us a break. One day soon Bush will be gone. But thanks to the Court,
we'll still all be living the Gitmo nightmare.