Tuesday, June 24, 2008

An Army of Policemen - Boumediene Revisited

As I have previously written, the recent decision in Boumediene v. Bush is the worst case to come out of the Supreme Court since its inception. It is a case wherein the activist wing of the current Court dispensed with precedent, the plain language of the Constitution, centuries of prior custom, all to arrive at a policy decision that portends untold damage to our ability to wage war and protect our national security. It is a policy decision made by unelected judges and now locked in Constitutional concrete. In an excellent essay today posted at PJM, American University law professsor Kenneth Anderson, discusses the policy calculus made by this intensely disingenuous court, noting "the Court seems to be marking out a long-term trajectory of forcing a reconception of war, even combat, as a form of police work."

This from PJM:

. . . It is as though the Boumediene majority somehow does not believe any of this has anything to do with, well, war and, to the extent that it is about war, the Court seems to be marking out a long-term trajectory of forcing a reconception of war, even combat, as a form of police work. Prior to Boumediene, I would have said that the Court’s main concern has been that the war on terror is not “war” in the traditional sense, operationally or legally, and that just because the political branches call something war does not mean it actually is war, at least not if a consequence is the executive’s ability to detain anyone — which is where the administration started out, back with Jose Padilla, a U.S. citizen — as any enemy combatant solely on its say-so. If habeas did not apply to that claim of executive power, what was it good for? It is a fair question, but one that, as the chief justice noted in his dissent, is covered not just for citizens but even for aliens, by the MCA and DTA. Why the need to go beyond those? After Boumediene, it would seem to matter only if you see this as part of a larger project to carry the Constitution abroad, insofar as American agents and military act beyond U.S. borders, and to transform warfare into a species of large-scale law enforcement. If you are required to collect and preserve evidence in order to be able to hold alien security detainees picked up in foreign war zones, after all, war has become a very different activity.

In the more immediate term, whether one sees the U.S. response to terrorism as war or not largely determines one’s legal views and policy responses. Justice Kennedy and his confreres are willing to treat the whole matter more or less like just another form of litigation for the courts to gradually work out because they do not see war as much other than a blind by the Bush administration, or else a non-global war on terror that has resulted in two actual wars, Afghanistan and Iraq. For the Court’s dissenters, the global war on terror, including its detentions at Guantanamo, is genuinely war, with all the attendant legal consequences. This is the difference between the two sides that determines all the others — that, and the refusal by the Court to defer to the political branches when they determine that the nation is at war. There are, as Wittes and a handful of others have pointed out, alternative ways to address the strategic question of a war on terrorism that do not require a stark, absolute yes or no, legal response in each case, war or not war. This is where the national discussion of responses to terrorism needs to go in the future, and Boumediene is an unfortunate impediment to getting there. . . .

Read the entire article. And also see this good analysis of the precedents from No Oil For Pacifists, discussing why this decision was wrong on the merits, irrespective of whether turning our military decisions into police work is an insane and suicidal piece of policy that, now being a Constituional decision, we as an electorate have little hope of changing. While we await this Court's decision in the Second Amendment case, we can only hope this Court does not take away our right to own weapons. After Boumediene, I suspect that we will need them at some point in the future.


Carl said...


As bad as Boumediene is, Roper v. Simmons was worse--because it let international law leak into all Constitutional jurisprudence.

Consul-At-Arms said...

I've quoted you and linked to you here: http://consul-at-arms.blogspot.com/2008/06/re-army-of-policemen-boumediene.html