By lex, on June 13th, 2008
No one is particularly pleased that we have a detention center on Guantanamo, just as few are particularly happy with the indefinite detention of unlawful combatants swept up on the field of battle in a seemingly endless war without boundaries, or even – at times – identifiable adversaries. It sucks, but such is the world we live in.
In a 5-4 decision yesterday, Supreme Court justice Anthony Kennedy – a so-called “maverick” conservative – joined the united left of the court to declare that it doesn’t suck enough.
Boumediene concerns habeas corpus ‚Äì the right of Americans to challenge detention by the government. Justice Kennedy has now extended that right to non-American enemy combatants captured abroad trying to kill Americans in the war on terror. We can say with confident horror that more Americans are likely to die as a result.
An Algerian native, Lakhdar Boumediene was detained by U.S. troops in Bosnia in January 2002 and is currently held at Guantanamo Bay. The U.S. military heard the case for Boumediene’s detention in 2004 and in the years since he has never appealed the finding that he is an enemy combatant, although he could under federal law. Instead, his lawyers asserted his “right” ‚ as an alien held outside the United States‚ to a habeas hearing before a U.S. federal judge.
Justice Kennedy’s opinion is remarkable in its sweeping disregard for the decisions of both political branches. In a pair of 2006 laws ‚ the Detainee Treatment Act and the Military Commissions Act ‚ Congress and the President had worked out painstaking and good-faith rules for handling enemy combatants during wartime. These rules came in response to previous Supreme Court decisions demanding such procedural care, and they are the most extensive ever granted to prisoners of war.
Yet as Justice Antonin Scalia notes in dissent, “Turns out” the same Justices “were just kidding.”
We have now extended to unlawful enemy combatants detained abroad the privilege of challenging their custody in US federal courts and – presumably – being given the right to see and challenge even classified evidence against them, thereby potentially jeopardizing sensitive means and sources critical to saving lives. This is a right never before extended even to lawful combatants held on US soil. The War on Terror has now become an issue for the courts to prosecute. Farewell, shock and awe, not to mention surprise, economy of force, maneuver, unity of command, security, simplicity – at least 6 of the 9 principles of war, in other words.
I’ll readily admit that I’m no constitutional scholar – the one course I took in Con Law from a wild-eyed leftist prof at the Boat School was enough to turn me off that route – but I’m prepared to concede that Justice Kennedy and his partners applied the law correctly, even it does establish ground-breaking precedence. Because the law is an ass.
The fact that two co-equal branches of government co-operated to create the Detainee Treatment and Military Commission Acts does not in itself overthrow the principle of judicial supremacy. Justice Kennedy gets to be The Decider.
The fact that of the many detainees who challenge their detention in court, some will be released and some of those find a way back to the killing fields is neither novel, nor, really any barrier to those who interpret law: If you cannot prove forensically that a terrorist committed a crime, you may not legally restrain him for what he might do. So, tighten up those chain-of-custody procedures, soldier.
The fact that the Supremes have decided, having offered the President and Congress the opportunity to get it right, that they hadn’t after all does rather smack of a hubristic declaration that, “We don’t actually have a plan, we just know that we don’t like yours.”
It just sucks.