Boumediene - Judicial Overreach By The Activist Wing Of The Supreme Court

The activist wing of the Supreme Court, with their 5-4 decision in Boumediene v. Bush has just done incredible damage to our nation. Never before in history has ours or any other nation treated foreign combatants in wartime to extensive legal protection the same as if they were a citizen of that country being held on criminal charges. The Supreme Court today has grossly overstepped the Constitutional limits placed on the third branch of government. They have made the judiciary at least partial arbiters of our national security, they have made it far more difficult to take and hold combatants captured on foreign battlefields, and they have made it far more difficult to maintain our national security secrets.

The Boumediene case (see decision here) was brought by several detainees at Guantanamo Bay asking that the Supreme Court grant them a right to file a habeas corpus petition in our federal court system. Habeas corpus is an ancient common law legal theory enshrined in our Constitution in what is commonly called the Suspension Clause:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

U.S. Const., Art. 1, Sec. 9, Cl. 2. The writ itself allows a person being held in detention to petition a federal court to have the authority responsible for detaining the person appear in federal court and show that the detention of the person is lawful. The burden of proof is on the detaining authority. Thus the government would have to provide evidence in Court, admissible under the Federal Rules of Evidence - a framework wholly ill suited for national security matters and involving personel serving half a world away - that the individual held was in fact an enemy combatant or member of al Qaeda, etc.

What the Court has done in Boumediene has been to extend the Writ of Habeas Corpus to non-citizens who are not present within the territory of the U.S. and who were retained as part of a war authorized by Congress. Carried to its logical conclusion, the Supreme Court just extended our Constitution to the citizens of the world, irrespective of their combatant status. Further, the Court took this step despite the laws passed by Congress specifically suspending habeas corpus for detainees.

Update 2: Ilya Somin at the Volokh Conspiracy does a good job of describing how unprecedented and far reaching this decision is:

. . . In earlier cases such as Rasul v. Bush, Hamdi v. Rumsfeld, and Hamdan v. Rumsfeld, the Court invalidated unilateral actions taken the by the executive, repudiating the Bush Administration's ultra-expansive interpretation of wartime executive power. However, Hamdan specifically left open the possibility that the administration's Guantanamo policies might be constitutional if authorized by congressional legislation. The Republican Congress (for the most part) provided that authorization in the Military Commissions Act of 2006.

In Boumediene, the Court challenges congressional power as well as the executive. It strikes down as unconstitutional several provisions of the Detainee Treatment Act of 2005 and the MCA. This is a nearly unprecedented situation where the Court rejected an important assertion of wartime power backed by both of the other branches of government. To my knowledge, virtually every previous case in which the Court ruled an important wartime policy unconstitutional was one where the policy in question was adopted by the executive acting alone. . .

Read the entire post.

All of this turns case law on its head and extends the power of the Court to oversee national security. It tosses out all of the laws passed by Congress to deal with prior challenges on habeas grounds. It will place an impossible onus on our military and our national security operatives to provide evidence – and in some cases classified information - in civil courts. Are we going to be sending back squad leaders and company commanders from the front line to provide testimony in U.S. courts? Do we have to provide the defense with the means and methods by which we collected our intelligence information? What a Pandora’s Box the activist wing of the Supreme Court has opened with this decision.

The ramifications of this decision are thoroughly explored by Supreme Court Justice Antonin Scalia in his dissent:

America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: at the Marine barracks in Lebanon, at the Khobar Towers in Dhahran, at our embassies in Dar es Salaam and Nairobi, and 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, at the Pentagon in Washington, D. C., and 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. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today. The President relied on our settled precedent in Johnson v. Eisentrager, 339 U. S. 763 (1950), when he established the prison at Guantanamo Bay for enemy aliens. . . .

In the long term, then, the Court’s decision today accomplishes little, except perhaps to reduce the well-being of enemy combatants that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report). Some have been captured or killed. See ibid.; see also Mintz, Released Detainees Rejoining the Fight, Washington Post, Oct. 22, 2004, pp. A1, A12. But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. See Khan & Lancaster, Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 15, 2004, p. A18. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Mintz, supra. Still another murdered an Afghan judge. See Minority Report 13. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. See White, Ex-Guantanamo Detainee Joined Iraq Suicide Attack, Washington Post, May 8, 2008, p. A18.

These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified. As THE CHIEF JUSTICE’s dissent makes clear, we have no idea what those procedural and evidentiary rules are, but they will be determined by civil courts and (in the Court’s contemplation at least) will be more detainee-friendly than those now applied, since otherwise there would no reason to hold the congressionally prescribed procedures unconstitutional. If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase. But even when the military has evidence that it can bring forward, it is often foolhardy to release that evidence to the attorneys representing our enemies. And one escalation of procedures that the Court is clear about is affording the detainees increased access to witnesses (perhaps troops serving in Afghanistan?) and to classified information. See ante, at 54–55. During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. See Minority Report 14–15. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities. See id., at 15.

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 following:

“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., concurring).

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 petitions. It is therefore clear that Congress and the Executive—both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting. As the Solicitor General argued, “the Military Commissions Act and the Detainee Treatment Act . . . represent an effort by the political branches to strike an appropriate balance between the need to preserve liberty and the need to accommodate the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States.” Brief for Respondents 10–11 (internal quotation marks omitted).

But it does not matter. The Court today decrees that no good reason to accept the judgment of the other two branches is “apparent.” Ante, at 40. “The Government,” it declares, “presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.” Id., at 39. What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails. . . .

McCain has many faults - and listening to him trash "greedy big oil" at his Town Hall meeting on Fox tonight made my tourette's kick in - but at least he will choose conservative judges. The damage being done to the U.S. by the activist wing of the Supreme Court is incalculable. God help us if we have Obama choosing Justices who, like the five activists on the Court, believe the Constitution should say whatever they want it to say on any particular day. Two years ago, in Kelo v. New London, the activist wing of the Court gutted the plain language of the Fifth Amendment to give government the right to take private property. Today's decision is, if anything, far worse, for it will do untold damage to our national security. In the long run, an activist Supreme Court steeped in the socialist philosophy of the left and with no concern for what the drafters of our Constitution intended is every bit as much a threat to our society as is radical Islam.

Update: Dafydd at Big Lizards has an excellent post discussing the ramifications of this decision and noting that the next President will likely appoint anywhere from one to three Supreme Court justice.