Ken Blackwell: America Will Regret High Court's Decision


ACRU Staff


July 17, 2008

This op-ed originally appeared on on June 17, 2008

Note: This piece was co-written by Kenneth A. Klukowski

The Supreme Court’s 5-4 opinion in Boumediene v. Bush will go down as one of the most egregiously-wrong decisions in history. Breaking 200 years of settled precedent, the Court has rewritten the Constitution’s allocation of national security powers. In essence, the narrow majority attacked the actions of a Commander-in-Chief in time of war. It attacked the law as rewritten by Congress in response to a prior decision of this very Court. And. it attacked the Court by aggressively ignoring its own prior decisions. The “logic” of this case sets up a bare majority of the Justices as supreme over the President, the Congress, and even other decisions of the Court itself.

The four dissenters were Chief Justice Roberts and Justices Scalia, Thomas and Alito. Roberts and Scalia wrote dissents, with all four justices signing both.

The Court, in an opinion written by Justice Kennedy, held that the writ of habeas corpus–the right of a detainee to contest their detention’s legality–applies to enemies who are not American citizens and are incarcerated abroad by the U.S. military. Yet, the Supreme Court has always held that habeas does not apply to noncitizens that are not on American soil. So, to rule as it did without overturning more than 200 years of precedent, the Court devised a brand-new rule that a location can be de-facto under U.S. sovereign control even though it is legally part of a foreign nation.

The majority held that the writ applies to Guantanamo Bay (Gitmo) because it deems it to be the equivalent of U.S. soil. It expressly allows that if prisoners were held somewhere outside U.S. control, then the writ would not apply, as has historically been the case.

In his dissent, Justice Scalia noted that the effect of Thursday’s ruling is that detainees will now be less safe, because the military will now keep detainees in foreign locations under foreign control, to avoid the question of habeas corpus. The military may even have to allow foreign governments custody of the prisoners, where prisoners will doubtless find less respect for their human rights.

Habeas corpus is a procedural right. For those covered, Chief Justice Roberts noted the legal test is, “whether the system [Congress] designed protects whatever rights the detainees may possess.” After Gitmo detainees go through the military process, they can still appeal to the U.S. Court of Appeals for the D.C. Circuit–the second-highest court in America.

Roberts began his dissent by saying that the Court has struck down the most generous procedural protections ever afforded to detainees in the history of warfare, and did so before a single detainee even appealed his detainment. Had the Court allowed at least one detainee’s case to go through appeal, it may have found their rights fully protected.

Roberts laments, “All 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.” He concluded that Congress’ balancing “the security of the American people” with detainees’ rights has been “brushed aside,” and that the American people have lost control of foreign policy to unelected and politically-unaccountable judges.

Scalia made Roberts look tame by comparison, beginning, “for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.”

Central to his dissent is that in Hamdan v. Rumsfeld, the Court had said the president could ask Congress to create military tribunals if he thought them necessary. In what Scalia called a “bait and switch,” Congress did exactly what the Court required, and when the Court struck it down as unconstitutional, Scalia quipped, “Turns out they were just kidding.”

The dissent’s critical point was that habeas does not apply to noncitizens in Cuba, therefore suspending it at Gitmo is unnecessary.

The Wall Street Journal correctly observed that this is the first time in American history that the Supreme Court, which is ill-suited to conduct military matters, interfered not only in the president’s prosecution of a war, but also overrode Congress’ policy judgments.

Justice Scalia ominously concluded, “The Nation will live to regret what the Court has done today.”

We agree.

Kenneth A. Klukowski is a D.C. area consultant and published writer on constitutional issues.



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