MarkSilverberg

Boumediene vs. Bush: A Case of National Denial
June 17, 2008

Undoubtedly the Supreme Court’s decision in Boumediene v. Bush will be hailed in many quarters as a great victory for the rule of law. It is not. It represents the continuing trend in our society to convert every form of decision making into a cause of action. For the first time in our history, the Supreme Court in Boumediene vs. Bush has rejected the judgment of both the Congress and the President on an issue of national security. The writ of habeas corpus has now been extended to foreign nationals whose only connection to the United States is their capture by our military in time of war.

 

In the wake of 9/11, President Bush exercised his authority as Commander-in-Chief by ordering military commissions to be established for prisoners captured during the course of our war with Islamic extremists. In furtherance of this, he asserted that foreign nationals captured in Afghanistan during the war against the Taliban regime and al-Qaeda and held as enemy combatants at the Guantanamo Bay military base in Cuba were not technically being held on US soil, and therefore could not avail themselves of US constitutional rights.

 

But the Supreme Court felt otherwise. In Rasul vs. Bush, the Supreme Court held on June 28, 2004 that the President had overstepped his legal authority and that prisoners held at Guantanamo Bay were subject to US law including the rights afforded by the Constitution, most especially the right to habeas corpus - the right to challenge the basis of their extended detention as enemy combatants beyond the normal criminal appeals process. As a result of Rasul, the Defense Department created Combatant Status Review Tribunals and Congress passed the Detainee Treatment Act of 2005 which restricted any further habeas corpus submissions from other enemy combatants held at the Guantanamo Bay facility.

 

But this too was challenged by other similar cases already in the system. In Hamdan vs. Rumsfeld, the Supreme Court, on June 29, 2006 went further by ruling that the Executive Branch lacked the constitutional authority to establish military commissions to try such enemy combatants. Only Congress, it stated, had such authority, all of which led to the passage of the Military Commissions Act of 2006 on October 17, 2006 which again abolished federal court jurisdiction over habeas corpus petitions filed by the Guantanamo enemy combatants.

 

Nevertheless, on June 29, 2007, the Supreme Court agreed to hear the case of Guantanamo detainee Lakhdar Boumediene and on June 12, 2008, in a divided Court decision written by Justice Anthony Kennedy, the Court upheld Boumediene's constitutional right to seek a writ of habeas corpus in federal civil court and further held that the Military Commission Act of 2006 represented an unconstitutional infringement of that right. That Act provided that the Commissions could still hear and consider hearsay evidence, restrict enemy combatants' access to classified secret evidence against them, and use evidence extracted from the suspect (or other witnesses) through the use of "extended interrogation techniques" so long as such evidence was extracted prior to the passage of the Detainee Treatment Act of 2005.

 

The majority of the Court rejected the Administration's position that the enemy combatants taken to Guantanamo should have the same rights as POWs held during World War II. Concerned more over the length of their confinement (and their possible continued confinement for the duration of this war), the Court not only held that these foreign enemy combatants have rights under the Constitution, but that the military commissions set up by Congress under the Military Commission Act of 2006 to try them were not an adequate substitute for their habeas corpus rights. The Court also found that Boumediene and several others had met their burden of establishing that the Detainee Treatment Act of 2005 failed to provide an adequate substitute for habeas corpus and went on to state that Congress can only suspend habeas corpus in incidences of rebellion or invasion. In so doing, the Supreme Court has opened the floodgates to a vast expansion of federal jurisdiction when it comes to the rights of foreign enemy combatants seized during times of war.

 

In Johnson v. Eisentrager (1950), the Court held that foreign enemy aliens held in a prison in the American occupation zone in Germany had no right to seek habeas corpus in the federal courts. In that case, German nationals had been tried and convicted by a military commission for providing aid to the Japanese after Germany's surrender in World War II. That precedent was judiciously side-stepped in Boumediene. As the WSJ's June 13th featured editorial notes: "By the logic of Boumediene, members of al Qaeda will now be able to challenge their status in court in a way that uniformed military officers of a legitimate army cannot."

 

In his dissenting judgment, Justice Scalia pointed out that this (right to habeas corpus) was not even a right afforded to the 400,000 POWs detained on American soil during World War II. Not a single one was accorded the right to have his detention validated by a habeas corpus action in federal court ….. despite the fact that they were present on US soil," so it is difficult to understand why any terrorist held anywhere in the world in American custody should now have that right.

 

In his dissenting opinion, Chief Justice John Roberts criticized his colleagues for striking down what he called "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants" and Justice Scalia went even further in maintaining that America is at war with radical Islamists who have been harvesting Americans since the Marine barracks bombings in Lebanon twenty-five years ago, and that this decision " will almost certainly cause more Americans to be killed."

 

Justice Kennedy even conceded: "It is true that before today, the Court has never held that non-citizens detained by our government in territory over which another country maintains de jure sovereignty have any rights under our Constitution”, yet, he now seems to have extended those rights to foreign enemy combatants captured abroad while engaged in a war with this country. The ruling opens the federal civilian courts to a possible two hundred and seventy foreign enemy combatants (including fourteen suspected al Qaeda members) being held at Guantanamo Bay on suspicion of terrorism or links to terrorism. It also offers them all the Constitutional legal remedies never before granted to our enemies in wartime. It's a worrisome development, to say the least, because it requires the judiciary to assume grave responsibilities in a realm where it has no special competence especially about who is or is not an enemy combatant or, even a threat to the United States. The imposition of the American civilian criminal justice system on decisions regarding potentially hostile aliens raises a host of questions which the Court does not even attempt to answer in Boumediene - questions like whether our military personnel must now make notes on the exact physical status of an enemy prisoner at the time of his capture for subsequent trial purposes. Must a chain of custody be preserved on a firearm or bomb seized from an enemy combatant? The Boumediene majority answers none of these questions. In effect, the judiciary has usurped decisions that should be made by the military, especially in time of war.

 

As Andrew McBride writes in the Federalist Society Online Debate Series:

 

"Justice Kennedy’s majority opinion is fraught with the confusion between the civilian criminal justice system and the waging of war. In the area of criminal justice, the Framers placed many roadblocks in the path of a conviction and the concomitant loss of life or liberty. The guarantee of counsel, the right to subpoena witnesses, the right of confrontation of adverse witnesses in open court, and the suppression of evidence gathered in violation of law, all make sense in the context of domestic law enforcement (italics added). In order to protect liberty, we are willing to sacrifice some efficiency in our criminal justice system. Our motto remains: Let 100 guilty men go free before one innocent man is convicted….....(However), the situation is entirely different when the nation faces an external threat. There is no reason for the Judicial Branch to "check” the effectiveness of the political branches in fighting our enemy. The idea of our judiciary protecting the "rights” of the Nazis or the Viet Cong from Executive overreaching is every bit as absurd as it sounds. (Had) Boumediene been decided in 1940, a right to go to court to challenge their detention would have extended to the over 400,000 axis troops held over 500 military facilities in this country during the war."

 

While the opinion applies only to those incarcerated at the Guantanamo Bay military base, it leaves unaddressed the status of other foreign enemy combatants held overseas by the U.S. such as those in prisons operated by the Central Intelligence Agency. While the ACLU no doubt will rejoice at this decision, the fact remains that thirty of the people whom the military thought it was safe to release from Guantanamo Bay have already re-joined the war against us. Abdallah Al-Ajmi was released from Guantanamo in 2005 and in April 2008, he blew himself up in Iraq killing seven Iraqi security forces and wounding twenty-eight others.

 

At no time in our history have we ever allowed such rights to foreign enemy combatants not captured inside the US itself. Unfortunately for all of us, Boumediene v. Bush is a monumental example of judicial overreach and a failure to follow established legal precedent, but of greater concern, it marks a massive expansion of judicial power into the areas of foreign policy and the conduct of war that the Constitution has always reserved to the president and Congress - the elected representatives of the American people.

 

This case has now effectively reversed that, unless the government henceforth chooses to bypass the issue about the de facto control of the United States by turning the detainees over to foreign countries for interrogation or detention. To protect the lives of Americans in combat overseas, they may have no other alternative. Failing that, God help us if the next person released from Guantanamo turns out to be a mass murderer like Khalid Sheik Mohammad.