Judicial Activism Run Amok

How much damage can an activist Supreme Court do? We are soon to find out. In the last several years, the activist wing of the Court has taken social policy out of the hands of the electorate and decided it per their whim. They have used international law to justify decisions about our Constitution when such decisions could not possibly be justified based on original intent or past precedent. They have gutted the Fifth Amendment’s limitation upon the government’s ability to take private property. But all of that was child’s play compared to their most recent decision in the case of Boumediene v. Bush. By the decision in Boumediene, the Supreme Court has subjected decisions of war and national security to intrusive judicial oversight and spread U.S. Constitutional protections to all enemy combatants.
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The case of Boumediene v. Bush is far more of a policy document than a reasoned Supreme Court decision. Indeed, the 'reasoning' of Justice Kennedy, who penned this travesty, is sophistry of the highest order. The outcome of his "reasoning" is a gifting of Constitutional rights to foreign prisoners of war and a vast intrusion of the judiciary into the enumerated powers of the Congress and President. It promises true havoc.

The Boumediene decision arose out of a writ of haebeas corpus filed by some foreign citizens who had been captured outside of the U.S. in the war on terror. The U.S. subsequently interred them outside of the U.S. at Guantanamo. Note that the war on terror is a declared war. Congress has authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks . . . in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Authorization for Use of Military Force (AUMF), 115 Stat. 224. Taking prisoners in war and holding them until hostilities cease is, to quote the Court in Hamdi v. Rumsfeld, "so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force." The petitioners in Boumediene claim they are being held unlawfully because they are not "enemy combatants."

Habeas corpus is latin for "produce the body." Habeus Corpus is an ancient right that derives from the Magna Carta, a document executed 793 years ago to limit the tyrannical excesses of King John. It allows a person held by the state to file a "Writ of Habeas Corpus" with an appropriate court to challenge their detention. It requires the authority detaining the person to prove before the court that they are detaining the person lawfully. It is, in the U.S., primarily a tool of criminal defendants to make legal or factual challenges to lower court or state court proceedings, or to raise issues when new facts have come to light.

The Writ of Habeas Corpus appears in U.S. law at two places. It is codified in the statutory law of the U.S. at 28 U. S. C. § 2241. Additionally, it appears in the Constitution as part of 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.

Art. I, § 9, cl. 2.

It is important to distinguish between these two sources of law. Supreme Court decisions that solely interpret statutory law can be corrected or altered simply by Congress passing a new law. On the other hand, decisions that are based on interpreting the Constitution can only be altered by a Constitutional Amendment or reversed by another Supreme Court decision. Thus, when an activist Supreme Court so interprets the Constitution to find new rights hidden between the written lines, they are acting as an unelected super-legislature whose decisions are, as a practical matter, near impossible to overturn. Indeed, only seventeen times in history have we amended the Constitution. Boumediene is of this latter ilk.

Prior to Boumediene, the right to file a writ of habeas corpus was never extended to non-citizens outside the territory actually claimed by the sovereign, and it has never been extended to military detainees not citizens of the sovereign even when held on the sovereign’s territory. Indeed, to understand just how far reaching and how disingenuous the decision is in Boumediene, one need only look to what should have been controlling precedent, the Supreme Court’s prior decision in the 1950 case of Johnson v. Eisentrager.

Eisentrager involved a writ of habeas corpus filed in U.S. courts by Germans captured in China after Germany had been defeated but while war with Japan was ongoing. The Germans were convicted by a U.S. military tribunal of spying for Japan and then transferred to a U.S. facility in Germany to serve their sentence. The Germans claimed that their trial and imprisonment violated U.S. Constitutional protections to which they claimed entitlement.

The Eisentrager decision is noteworthy for its holdings that habeas corpus has bright line territorial limits and that nothing in the history of our country justified treating enemy combatants as citizens or as mere criminals entitled to Constitutional rights. Further, the Court clearly anticipated the incredible mischief that allowing such habeas actions to proceed would do to our national security, This from the Supreme Court in Eisentrager writing nearly sixty years ago:

We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.

. . . [E]ven by the most magnanimous view, our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and of enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and nonresident enemy aliens who at all times have remained with, and adhered to, enemy governments.

. . . The essential pattern for seasonable Executive constraint of enemy aliens . . . on the basis of political and legal relations to the enemy government, was laid down in the very earliest days of the Republic and has endured to this day. It was established by the Alien Enemy Act of 1798. . . . Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security. This is in keeping with the practices of the most enlightened of nations and has resulted in treatment of alien enemies more considerate than that which has prevailed among any of our enemies and some of our allies. This statute was enacted or suffered to continue by men who helped found the Republic and formulate the Bill of Rights, and although it obviously denies enemy aliens the constitutional immunities of citizens, it seems not then to have been supposed that a nation's obligations to its foes could ever be put on a parity with those to its defenders.

. . . The foregoing demonstrates how much further we must go if we are to invest these enemy aliens, resident, captured and imprisoned abroad, with standing to demand access to our courts.

We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.

. . . A basic consideration in habeas corpus practice is that the prisoner will be produced before the court. This is the crux of the statutory scheme established by the Congress; indeed, it is inherent in the very term "habeas corpus." . . . To grant the writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

The wisdom displayed by the Court in 1950 has been wholly lost on the activist wing of the Court today. I defy anyone with an ounce of intellectual honesty to argue that Eisentrager established a balancing test for the limits of a right to habeas corpus rather than a bright line test based on territorial sovereignty. Eisentrager was the one case that Kennedy had to get around to reach his desired conclusion in Boumediene. Kennedy did this by discounting the bright line territorial sovereignty test articulated in Eisentrager on the grounds that "the [Eisentrager] Court mentioned the concept of territorial sovereignty only twice in its opinion." Wow.

What in God’s name does the number of times a test is mentioned – and indeed, in Eisentrager the dispositive test in resolving the case – have to do with the validity of the test? Kennedy inserts his own balancing scale based on number of repetitions to determine whether the Court really meant what it said in order to justify his decision. That is far from the only precedent that Kennedy deliberately misrepresents – he does so to virtually every case he cites in the Boumediene opinion. I have little doubt that any law professor who received a paper evincing this degree of sophistry from a third year law student would advise the student to seek alternative employment. This is not a decision that was reached after reasoning through precedent and taken in consideration of the intent of those who drafted our Constitution. It was a decision first reached by a group of unelected judges based on what they believed would be the best policy and then reasoned in spite of precedent and original intent to arrive at their predetermined destination.

But it does get worse. Kennedy makes another jump in logic based on Eisentrager that is jaw dropping in both its degree of intellectual dishonesty and what it portends both for our national security and ability to conduct war. Kennedy says that a very robust version of habeas corpus should extend to enemy aliens being held by our armed forces because, unlike the Eisentrager petitioners, "there has been no trial by military commission for violations of the laws of war" for Guantanamo detainees.

Nothing in Eisentrager stands for the proposition that detainees, merely by virtue of being detained, are entitled to a hearing, let alone a full trial as occurred in Eisentrager for war crimes. This is a complete and clearly deliberate mischaracterization of Eisentrager decision. Indeed, Kennedy twists that so far out of context as to be unrecognizable and turns it on its head as justification for his holding that all detainees are Constitutionally entitled to a hearing in U.S. Courts.

There are, in essence, two categories of prisoners taken incident to war. The first category consists of those prisoners taken during the war and who are then simply held for the duration of hostilities. Confinement is not done to punish the prisoner, but for self-protection of the detaining force. A second category of prisoners captured during war are those whom you do not wish to merely detain throughout hostilities, but additionally to punish for war crimes. They are the ones you keep in custody and put to a trial with an eye towards keeping them in detention after the end of hostilities or executing them.

Understand that there was not, before this decision in Boumediene, any requirement that people detained during wartime be given any due process hearing to determine whether they were being properly held as combatants. Anywhere. Anytime. None. Zero. Have I emphasized that enough? That is true irrespective of the length of the conflict – whether short (WW I) or long (the war against the Barbary Pirates of the Ottoman Caliphate for fourteen years). Indeed, never to my knowledge in recorded world history has such a requirement been articulated by any nation. Note that during World War II, we held over 400,000 enemy combatants actually interred in the lower 48 states. At no time were they able to access U.S. courts to challenge their status as enemy combatants. Had we to produce "admissible" evidence at habeas hearings in "Article III" courts – i.e., U.S. civilian courts – on the detention of each of these individuals, we quite literally would have had to shut down our war effort.

The Geneva Convention, provides nothing at all to the contrary. It does not require any due process rights for prisoners as a general matter. The Convention provides only that combatant’s be repatriated when hostilities cease (Art. 118). The Convention puts no timeline or caveat to that such that a nation would be required to let prisoners go during ongoing hostilities regardless of how long hostilities last, with the exception of those sick and near death. The Convention provides no right to a hearing to determine a combatant’s status.

Once captured, the Geneva Convention provides "due process" for prisoners only in two instances. A detainee must be provided a hearing convened by a "competent tribunal" if the detaining authority wants to strip him of his Geneva Convention rights because the authority believes he does not meet the prerequisites to claim the protections of the Convention. Note that the activist wing of our Supreme Court took that right away from the Executive in Hamdan v. Rumsfeld. The Hamdan Court held that all people detained as part of the war on terror fell under the Geneva Convention as a matter of law, irrespective of whether they met they prerequisites – which most surely don’t. At any rate, rights to a hearing also arise if the detaining power wants to try a detainee for war crimes. In such case, the trial must meet minimum standards set forth in the Convention’s Chapter III. One of those requirements is that "A prisoner of war shall be tried only by a military court . . . (Art. 84). That is it.

Indeed, even the activist wing of our Supreme Court noted the distinction between mere prisoners of war and prisoners of war tried for war crimes in Hamdan:

It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent . . . harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.

Of course, that was two years ago. Today that is a distinction that Justice Kennedy and the activist wing now erase in Boumediene, turning the issue completely on its head. The sleight of hand in Kennedy’s statement that habeaus relief is authorized for non-citizen prisoners of war because they have not been tried by a military commission is just beyond belief. It is supported by no historical precedent whatsoever.

Please take note that I am not suggesting that we merely take prisoners and then toss away the key. Whether as a prudential consideration we want to have hearings to determine whether a person taken prisoner is being properly held as a combatant is a wholly separate issue. Given the shadowy nature of much of this war, I would argue strenuosly that we can and should hold such hearings to the extent that we are able to do so without appreciably degrading our ability to execute war and protect our national security. But that is quite literally a world apart from the activist Court’s vast expansion of Constitutional rights to non-citizen combatants and the assumption of a role for the Court in shaping our decisions on national security and the execution of war.

If we take the prudential choice to review the combatant status of detainees after their initial capture, than the place to do that is in military tribunals. Such tribunals can be set up to allow evidentiary rules that take into account that we are not going to be bringing soldiers back from the front line to give direct evidence and that we need to maintain the secrecy of our intelligence, including its means and methods. And guess what – that is precisely what both Congress and our Executive did. They designed an extensive review process in the Detainee Treatment Act of 2005, codified at 28 U.S.C. § 2241, and with the Military Commissions Act. Indeed, the penultimate review based on the procedures the Congress passed into law was in an Article III Court – the D.C. Court of Appeals. The D.C. Court was required by the DTA to review each DTA proceeding to determine if it "was consistent with the standards and procedures specified by the Secretary of Defense" and "whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States." Not only that, but the DTA explicitly suspended the right of habeas corpus for any prisoners being held at Guantanamo.

But that is now tossed out the window by our activist Court, quite literally without any explanation that passes the laugh test. Not merely have they substituted a seemingly world wide right to habeus corpus for all people detained in the War on Terror, they have suggested contours of a habeus right that are unheard of in respects to a military tribunal. In the case of In re Yamashita, 327 U.S. 1, 8 (1946), the Supreme Court held that "the courts may inquire whether the detention complained of is within the authority of those detaining the petitioner. If the military tribunals have lawful authority to hear, decide and condemn, their action is not subject to judicial review." That would be completely in keeping with the statutory process Congress passed in the DTA. Indeed, the activist wing gives no viable reason why the DTA is ineffective to provide a review and appropriate remedies, it simply assumes that each person detained has a Constitutional right to such a review, that they have been imprisoned too long now to deny them habeas corpus, and, regardless of the process carefully crafted by our President and the Congress, it is facially unconstitutional. As Justice Robert’s said in his dissent,

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.

If I am reading Parts V and VI of Kennedy's opinion accurately, then what the activist wing of the Court seems to be arguing for in its place is madness. In an incredibly opaque opinion, Kennedy seems to be requiring that the habeas rights of a detainee should be extensive, allowing for what amounts to a de novo trial at the district court level without any deference to the initial determinations made by the military and our intellegince agencies under the DTA.

That is a Pandora’s Box indeed. Understand that in an Article III Court, the Federal Rules of Evidence and all the rights of the Constitution apply. Just consider the Confrontation Clause. Does it mean that soldiers must be brought back from the front lines to be witnesses at each hearing. What about CIA agents and undercover agents? And what right does the detainee have to demand that the U.S. produce witnesses it says are needed for the defense? What about finding people overseas in war zones, serving them with a subpoena and then transporting them to and from the hearings? Is serving subpoenas under fire to become a new mission for our infantry platoons? If we cannot find the defense's desired witnesses or they will not come, does that mean that the defense is materially prejudiced and the detainee should be released? What, if any, other Constitutional rights are detainees entitled to, and would any of them act as an evidentiary bar? What about Miranda?

Then there are the Federal Rules of Evidence. If the material that implicates the detainee is classified and of national security importance, do we still have to reveal the information to the detainee in discovery? What about means and methods? This is hardly mere speculation. As Justice Scalia notes in his dissent,

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. . . . 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. . . .

And what of the standards for decision. In most appellate reviews, the standard is whether the lower court made a clear error. In a de novo trial on a habeas proceeding, the standard would be what? Would the government have to prove it's case beyond a reasonable doubt? Kennedy does not tell us.

All of this is simply horrendous. And the activist wing of the Court takes this action on the basis of a what it says is a deeply problematic "separation-of-powers" issue. They have to be joking.

All of the war powers enumerated in the Constitution belong to the Congress and the President. Moreover, Article I reserves to Congress the right to suspend habeas corpus – which it explicitly has done in the DTA to no avail. The Court never explains why the suspension of habeas corpus explicitly stated in the DTA is "invalid," it simply calls it is so, seemingly by ipse dixit, and continues on with its decision.

The hubris in this decision is amazing. Nothing in Article III gives the Court any role in decision making on matters of war or national security. Yet now they will have the final say as to what constitutes an enemy combatant and who should be released during on-going hostilities. Contrary to the assertion that the activist Court is vindicating the doctrine of "separation of powers," it is actually making an utter mockery of it. The Court does so by taking on a power to oversee our wartime decision making and national security that it is only granted to the two other branches in the Constitution, the very document which by its terms defines the separation of powers between the branches of government. As Justice Roberts notes: "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."

Of all the decisions by the activists on the Supreme Court from Roe v. Wade forward, this has got to be the one with the most potential to do incredible harm to our country. The next President will likely have one to three appointments to make to the Supreme Court. God help us if its President Obama and he insures an activist Court for the next two decades. We will have trouble recognizing what has become of our country by the end of those two decades. But I am sure of one thing. That in twenty years, there will be an appreciable number of dead Americans who would be alive but for the incredible hubris of this activist Court.

Update: Law Professor John Yoo has made a similar criticism of Boumediene at the WSJ, adding:

. . . Judicial micromanagement will now intrude into the conduct of war. Federal courts will jury-rig a process whose every rule second-guesses our soldiers and intelligence agents in the field. A judge's view on how much "proof" is needed to find that a "suspect" is a terrorist will become the standard applied on the battlefield. Soldiers will have to gather "evidence," which will have to be safeguarded until a court hearing, take statements from "witnesses," and probably provide some kind of Miranda-style warning upon capture. No doubt lawyers will swarm to provide representation for new prisoners.

So our fighting men and women now must add C.S.I. duties to that of capturing or killing the enemy. Nor will this be the end of it. Under Boumediene's claim of judicial supremacy, it is only a hop, skip and a jump from judges second-guessing whether someone is an enemy to second-guessing whether a soldier should have aimed and fired at him.

President Bush has declared, rightly, that the government will abide by the decision. No American lives are yet imperiled, as the courts will have to wrestle with the cases for months, if not years. But the upshot of Boumediene is that courts will release detainees from Guantanamo Bay, or the Defense Department will do so voluntarily, in the near future.

Just as there is always the chance of a mistaken detention, there is also the probability that we will release the wrong man. As Justice Antonin Scalia's dissenting opinion notes, at least 30 detainees released from Guantanamo Bay -- with the military, not the courts, making the call -- have returned to Afghanistan and Iraq battlefields.

. . . Justice Kennedy and his majority assume that terrorism is some long-term social problem, like crime, so the standard methods of law enforcement can be used to deal with al Qaeda. Boumediene reflects a judicial desire to return to the comfortable, business-as-usual attitude that characterized U.S. antiterrorism policy up to Sept. 10, 2001.

The only real hope of returning the Supreme Court to its normal wartime role rests in the November elections. Sometimes it is difficult to tell Sens. Barack Obama and John McCain apart on issues like campaign finance or global warming. But they have real differences on Supreme Court appointments. Mr. Obama had nothing but praise for Boumediene, while Mr. McCain attacked it and promised to choose judges like Chief Justice Roberts and Justice Samuel Alito, both dissenters.

Because of the advancing age of several justices (Justice Stevens is 88, and several others are above 70), the next president will be in a position to appoint a new Court that can reverse the damage done to the nation's security.

Read the entire article.

Update 2: Per Gateway Pundit, based on the Boumediene decision, lawyer for Omar Khadr, a guest at Guantanamo since being captured in 2002 after tossing a grenade that killed an American soldier, intends to raise as a defense at hearing this week that all charges should be dismissed because, at the time of his capture, he was not Mirandized.