Friday, June 13, 2008

Boumediene v. Bush

Posted by Teresa at 9:49 AM
You know what is the perfect way to spend your Friday? Reading yesterday's
Supreme Court ruling on the Guantanamo Bay detainees. It's a lengthy piece. I
spent a few hours yesterday day skimming through it. I thought I would highlight
the parts that stood out to me. I'm definitely no constitutional expert so this is just
what popped out to me, a layperson.

From the Opinion delivered by Justice Kennedy:

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 cases before us lack any precise historical parallel. They involve
individuals detained by executive order for the duration of a conflict that,
if measured from September 11, 2001, to the present, is already among
the longest wars in American history. See Oxford Companion to American
Military History 849 (1999). 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. Under these circumstances
the lack of a precedent on point is no barrier to our holding. We hold that
Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If
the privilege of habeas corpus is to be denied to the detainees now before
us, Congress must act in accordance with the requirements of the Suspension
Clause. Cf. Hamdi, 542 U. S., at 564 (SCALIA, J., dissenting) (“[I]ndefinite
imprisonment on reasonable suspicion is not an available option of treatment
for those accused of aiding the enemy, absent a suspension of the writ”). This
Court may not impose a de facto suspension by abstaining from these

Because our Nation’s past military conflicts have been of limited duration,
it has been possible to leave the outer boundaries of war powers undefined.
If, as some fear, terrorism continues to pose dangerous threats to us for
years to come, the Court might not have this luxury. This result is not
inevitable, however. The political branches, consistent with their independent
obligations to interpret and uphold the Constitution, can engage in a
genuine debate about how best to preserve constitutional values while
protecting the Nation from terrorism.

Justice Kennedy really delved into the history of habeas corpus. He argued that the
right exists to protect separation-of-powers:

Surviving accounts of the ratification debates provide additional evidence
that the Framers deemed the writ to be an essential mechanism in the
separation-of-powers scheme. In a critical exchange with Patrick Henry
at the Virginia ratifying convention Edmund Randolph referred to the
Suspension Clause as an “exception” to the “power given to Congress to
regulate courts.

The Supreme Court's opinion is being presented as a "rebuke" and a "huge blow"
to President Bush, even though he worked with Congress to create the Military
Commissions Act. Also, it was a 5-4 ruling, so the ruling could have gone the other

The dissenting opinions were also strong. Here's a quote from Justice Roberts'
dissent :

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

Justice Roberts asks why the DTA system isn't sufficient:

The majority’s overreaching is particularly egregious given the
weakness of its objections to the DTA. Simply put, the Court’s
opinion fails on its own terms. The majority strikes down the
statute because it is not an “adequate substitute” for habeas
review, ante, at 42, but fails to show what rights the detainees
have that cannot be vindicated by the DTA system.

When people argue for habeas corpus rights for the detainees they almost
make it sound as if they have no legal recourse. The detainees are just put
in a cell and the keys are thrown away. That can't true. If it's true then how
does one explain a story like this?

Justice Scalia dissent had a sarcastic tone:

And today it is not just the military that the Court elbows aside. A mere
two Terms ago in Hamdan v. Rumsfeld, 548 U. S. 557 (2006), when the
Court held (quite amazingly) that the Detainee Treatment Act of 2005
had not stripped habeas jurisdiction over Guantanamo petitioners’ claims,
four Members of today’s five-Justice majority joined an opinion saying the

“Nothing prevents the President from returning to Congress
to seek the authority [for trial by military commission] he believes
necessary. “Where, as here, no emergency prevents consultation
with Congress, judicial insistence upon that consultation does not
weaken our Nation’s ability to deal with danger. To the contrary,
that insistence strengthens the Nation’s ability to determine—
through democratic means—how best to do so. The Constitution
places its faith in those democratic means.” Id., at 636 (BREYER, J.,

Turns out they were just kidding. For in response, Congress, at the
President’s request, quickly enacted the Military Commissions Act,
emphatically reasserting that it did not want these prisoners filing habeas

He also puts into context the importance of the opinion in no uncertain terms:

America is at war with radical Islamists. The enemy began by killing
Americans and American allies abroad: 241 at the Marine barracks in
Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in
Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. See National
Commission on Terrorist Attacks upon the United States, The 9/11
Commission Report, pp. 60–61, 70, 190 (2004). On September 11, 2001,
the enemy brought the battle to American soil, killing 2,749 at the
Twin Towers in New York City, 184 at the Pentagon in Washington, D. C.,
and 40 in Pennsylvania. See id., at 552, n. 9. It has threatened further
attacks against our homeland; one need only walk about buttressed and
barricaded Washington, or board a plane anywhere in the country, to
know that the threat is a serious one. Our Armed Forces are now in the
field against the enemy, in Afghanistan and Iraq. Last week, 13 of our
countrymen in arms were killed.

The game of bait-and-switch that today’s opinion plays upon the Nation’s
Commander in Chief will make the war harder on us. It will almost certainly
cause more Americans to be killed.

He's unequivocal where he stands on the issue.

Tell me what you think?



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