by C. Paul Smith
On June l2, 2008, the Supreme Court ruled that alien enemy combatants1 detained abroad by our military forces in the course of an on-going war have a constitutional right to habeas corpus relief. Never before has the Constitution given this right to aliens abroad.
This (5-4) ruling is very important and will have far-reaching impact for years to come. Democrat Presidential candidate Barack Obama praised the ruling, while Republican Presidential candidate John McCain sharply criticized it.
On some levels, the ruling was relatively simple—the Court wanted to extend additional rights to foreign enemy combatant detainees. But on close examination, there were several complex issues involved. While few people will read the decision, this will not deter them from offering their opinions on the merits or flaws of the ruling. I encourage all citizens to read it and to get a thorough understanding of what the Court did in this case. This case is one of the most egregious examples you will find of judicial activism, lack of judicial restraint, and judicial pre-emption of foreign policy power and national defense power from the Executive and Legislative branches of the government. The implications of this decision are extensive and profound.
It is difficult to distill in a few words a concise summary of what happened in this case. The Majority opinion (authored by Justice Anthony Kennedy) took 70 pages. The dissent of Chief Justice John Roberts took 28 pages, and the dissent of Justice
Antonin Scalia took 25. When you add in Justice Souter’s 3-page concurring opinion—the total pages reach 126. But the reading of this opinion is a must for all patriots.
By the time you get to page 70 in Justice Kennedy’s majority opinion, you may be mesmerized or persuaded by his reasoning. The majority feels the pain of the enemy combatants at Guantanamo Bay, who for six years (some of them) have remained detained after they were captured in foreign lands fighting against our troops. To some, the length of this detention is intolerable. To some, the criticism that some international peoples level at the U.S. for maintaining the Guantanamo detention facility is more than they can stand. Five of the Supreme Court Justices appear to be in this group. Their impatience and disapproval of the nation’s operations in Guantanamo Bay has led them to hastily and abruptly take actions that have undermined over 200 years of constitutional precedence to attempt to appease enemies of America who will never be appeased because their hatred for America is unreasonable and intractable.
I. Background
Previous to the Boumediene ruling, alien enemy combatants had no rights to habeas corpus protection in U.S. courts if they were confined abroad in places where the U. S. was not sovereign. The case of Johnson v. Eisentrager, 339 U.S. 763, (1950) specifically held this. (See, e.g., Scalia, J., dissenting, p. 10.) The Bush administration properly relied on this precedent, as it detained captive, alien enemy combatants at Guantanamo Bay. But this year’s ruling in Boumediene abandoned stare decisis and overturned Eisentrager (1950) and effectively overturned Hamdi v. Rumsfeld, 542 U.S. 507 (2004) for no compelling reasons. A close examination of the Boumediene ruling will show that it will not give these enemy combatants any significant additional rights, and that the Boumediene holding will serve only as a rebuke of the Bush administration by the Court, when the Bush administration had in good faith relied on Supreme Court precedents. Consequently, all that this case accomplished is to diminish the power of the Executive Branch and to enlarge the power of the Judicial Branch.
II. Problems with Boumediene
Here is a list of some of the major problems in Boumediene v. Bush:
l. The Supreme Court, for the first time, confers on non-citizen, alien enemy combatants the right to seek and obtain the protections of a writ of habeas corpus in U. S. Courts.
2. This ruling by the Supreme Court effectively overturns the 1950 case of Johnson v. Eisentrager, 339 U.S. 763. Until now, there was no question but that alien enemy combatants at the Guantanamo Bay facility would not have the right to access to
U. S. courts through the filing of writs of habeas corpus. But the majority decided to interpret Eisentrager differently—they said that since the U.S. has effective control over Guantanamo Bay, that therefore the habeas writ should be made available. The Majority denies that they overturned Eisentrager, but they offered only obfuscation and linguistic contortions rather than sound reasoning in support of their conclusion. The majority’s effort to reconcile its ruling in Boumediene with its ruling in Eisentrager is a total failure—and will convince only those whose analysis processes do not insist upon facts and sound reasoning.
3. This ruling by the Supreme Court also effectively overturns major parts of the recent, 2004, case of Hamdi v. Rumsfeld, in which case the Supreme Court recommended the precise procedures and practices that Congress and the President then enacted to ensure that the detention of alien enemy combatants satisfies all constitutional requirements. In that regard, Chief Justice Roberts wrote this:
The plurality in Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004), explained that the Constitution guaranteed an American citizen challenging his detention as an enemy combatant the right to “notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.
The plurality specifically stated that constitutionally adequate collateral process could be provided “by an appropriately authorized and properly constituted military tribunal,” given the “uncommon potential to burden the Executive at a time of ongoing military conflict.” Id., at 533, 538. This point is directly pertinent here, for surely the Due Process Clause does not afford non-citizens in such circumstances greater protection than citizens are due.
If the CSRT 2 procedures meet the minimal due process requirements outlined in Hamdi, and if an Article III court is available to ensure that these procedures are followed in future cases, . . . there is no need to reach the Suspension Clause question. Detainees will have received all the process the constitution could possibly require, whether that process is called “habeas” or something else. The question of the writ’s reach need not be addressed. (Roberts, C. J., dissenting, pp. 4-5.)
4. In this case the Supreme Court specifically holds unconstitutional portions of the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA), which acts were specifically passed by Congress and signed by the President to comply with the requirements that the Supreme Court articulated in Hamdi.
5. The Majority in Boumediene erroneously concluded that Combatant Status Review Tribunals (CSRTs) do not have the authority to release detainees if their deten-tion is not warranted. The majority’s view on this issue is patently absurd. The authority to release one who is not properly detained is clearly implicit in the law’s language, and some detainees had been released. The majority’s reasoning here is pathetic. 3
6. The action by the majority in Boumediene is wholly inconsistent with the Court’s precedents, and amounts to a repudiation of the Court’s doctrine of stare decisis, which the Court used to honor in attempting to be consistent with its prior rulings.
7. The Court in Boumediene ruled that because the CSRT procedures provide that "newly discovered evidence" may be presented only by a new proceeding, and not during an appeal, that therefore such CSRT procedures violate the constitutional rights of the alien enemy combatants. This is a distinction without a difference—it is an inconsequential matter that does not affect any substantive right. The majority was straining to find fault with this technicality.
III. Justice Scalia’s Comment
Here is what Justice Scalia said about the Boumediene ruling:
Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable "functional" test for the extraterritorial reach of habeas corpus .... It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today. [Scalia, J., at 25.]
IV. Chief Justice Roberts’ Conclusion
Chief Justice Roberts concluded this about Boumediene:
For all its eloquence about the detainees’ right to the writ, the Court makes no effort to elaborate how exactly the remedy it prescribes will differ from the procedural protections detainees enjoy under the DTA. [Roberts, CJ, at 25.]
The majority instead compares the undefined DTA process to an equally undefined habeas right—one that is to be given shape only in the future by district courts on a case-by-case basis. This whole approach is misguided .... All that today’s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary. [Roberts, CJ , at 2-3.]
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?
--Roberts, C.J., at 1-2
American Citizens Have Right to Habeas Corpus Relief When Detained Abroad
On June 12, 2008, a unanimous Supreme Court ruled in Munaf v. Geren, 554 U.S. ___ (2008) that American citizens detained outside the United States and charged with war offenses against the U.S. have the right to seek and obtain habeas corpus review of their detention.
Although the Court was sharply divided (5-4) in its ruling in Boudiemene that alien enemy combatants had a right to habeas corpus review of their detention, in Munaf the Court was unanimous in holding that American citizens have the right to habeas corpus review no matter where they may be detained.
1 It is important to understand the definition of an “enemy combatant.” This is to be distinguished from a prisoner of war, in the uniform of its country. An enemy combatant is one who is not dressed in the military uniform of its country, but who for all appearances is a civilian, and who nevertheless fights against our troops. In other words, an enemy combatant is like a spy or a terrorist who may by subterfuge and stealth infiltrate our ranks to wreck havoc through covert means.
2 Combatant Status Review Tribunals
3 It should be pointed out that some of the detainees that were released later returned to the battle field to kill American troops.
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