Posted on 06/21/2008 5:46:26 PM PDT by The_Republican
Our Constitution works best when its custodians--the president, Congress, and the judiciary--behave well. In the matter of suspected "enemy combatants," all three have behaved badly. That's why the Guantanamo Bay prison camp has been such a running sore. Even if Guantanamo ends up being closed, the human-rights and public-relations debacles that it symbolizes will continue until a new president and Congress take a grown-up approach to some extremely thorny problems.
Problems such as: What should we do with a Guantanamo detainee who, the best available evidence suggests, is probably a jihadist bent on mass murder but who cannot be convicted of any crime?
Don't hold your breath waiting for a clear answer from the Supreme Court, which has asserted its supremacy in such matters--while raising more questions than it has resolved--in three cases, culminating in its big 5-4 ruling on June 12 that Guantanamo detainees have a right to broad federal judicial review of their petitions for release.
The Bush administration has perpetuated a global scandal since 2002 by stubbornly refusing to provide these detainees--who could be locked up for life--with a fair opportunity to prove that they are innocents seized and held by mistake. Bush and a few of his top political appointees imposed these policies over objections from many of the military lawyers and other professionals whose expertise ordinarily helps shape presidential decisions and helps entitle them to judicial deference.
(I will discuss the related scandal of brutal interrogations in a future column.)
Congress, after years of passive abdication, partly ratified the administration's detention policy and sought to overrule contrary Supreme Court decisions in two laws that Republicans rammed through with little deliberation in late 2005 and October 2006.
The essence of the Bush detention policy was a system of military hearings so error-prone and tilted against detainees--with no defense attorneys, no chance to see or rebut evidence classified as secret by the government, and other weaknesses--as to inspire little confidence. Congress added an overlay of judicial review too limited to ensure fairness. Congress and Bush alike have avoided political accountability, while further offending the rest of the world, by exempting U.S. citizens from this regime of indefinite imprisonment without due process.
It's true, as Chief Justice John Roberts stressed in dissenting from the latest ruling, that this was "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." But Roberts ignored the fact that the risk of error in determining who is an enemy combatant is far higher and that most of these prisoners have already been held longer than those in any previous U.S. war.
The elected branches' disrespect for constitutional values has put the Supreme Court in a difficult position. It has responded by appearing to arrogate to the judiciary powers that are, for good reason, unprecedented in Anglo-American history.
Understandably determined not to be seen as putting its seal of approval on the gross denials of due process at Guantanamo, the Court could have administered cautious, modest rebukes to the Bush policy. Instead, in 2004 and 2006 as well as in the latest decision, the five more liberal justices have eviscerated a major 1950 precedent, Johnson v. Eisentrager; struck down major parts of the 2005 and 2006 laws; and asserted potentially sweeping, open-ended powers to oversee wartime polices traditionally deemed the exclusive province of the elected branches.
The 5-4 decision on June 12 in Boumediene v. Bush called for broad judicial review of petitions for habeas corpus--challenging either the fact or the conditions of detention--filed by any of the 270 suspected enemy combatants remaining at Guantanamo. Those eligible to file range from small fry who may not be jihadists at all to dangerous terrorists such as Khalid Shaikh Mohammed, who appears to have been the mastermind of the 9/11 attacks. (The military has already released or transferred abroad more than 500 others.)
To be sure, no court is likely to turn any detainee loose until after years of evidentiary hearings, inconsistent rulings by different judges, and further appeals, if ever. And Justice Antonin Scalia's dark prediction in dissent that the high court's decision "will almost certainly cause more Americans to be killed" may prove unduly pessimistic.
But the unrestrained hubris with which the justices have now injected themselves into our shooting wars--after decades of wading deeply and undemocratically into the culture wars while presiding over a lawsuit industry steeped in injustice, profiteering, and waste--may prove to be a cure as bad as the Bush disease.
Or it may not. Much will depend on whether the decision ends up extending judicial power only to Guantanamo, or worldwide. This is one of the many, many questions that Justice Anthony Kennedy's 70-page opinion raises but does not answer.
If this turns out to be a Guantanamo-only decision, it would look much less like a judicial power-grab and more like a bold but measured refusal to let Bush exercise quasi-dictatorial powers by treating as a legal black hole the one military base in the world that is--unlike U.S. bases in Afghanistan and Iraq--under complete, perpetual U.S. control and subject to the laws of no other nation.
A ruling limited to Guantanamo would also look less like a tacit repudiation of the long-standing rule articulated by Eisentrager that aliens captured and held by the military outside of U.S. "sovereign" territory have no access to U.S. courts or rights under the Constitution. Rather, it would look like a reasonable judgment that although Guantanamo is technically still under Cuban sovereignty, it is controlled by what Kennedy called the "de facto sovereignty" of the U.S.; nobody denies that the detainees would be entitled to habeas corpus review had they been taken not to Guantanamo but to, say, Puerto Rico or Oklahoma.
Finally, a Guantanamo-only ruling would probably do more good than harm. It would give deserving detainees a better chance to prove that they are not dangerous. It would legitimize the detentions of those whom the courts find to be enemy combatants in the eyes of reasonable people at home and abroad. At the same time, it would eschew any intention to extend judicial oversight to dangerous, unstable detention facilities in war zones such as Afghanistan and Iraq.
But Justice Kennedy's opinion, which the two dissents expose as a tour de force of illogic on several points, seems deliberately designed to hold open the possibility of an unprecedented, disruptive, dangerous regime of judicial meddling in military detentions in every corner of the globe.
Kennedy invoked a squishy, three-factor test in extending judicial habeas corpus review to Guantanamo. Depending on which factor is given more weight, the same logic might or might not extend to Afghanistan and Iraq.
I hope that Kennedy's ambiguity is intended as a spur to the executive branch to provide a process worthy of judicial deference for reviewing enemy-combatant designations. But the majority's only explicit concession to military necessity was to aver that it would likely overstretch judicial power "to assume that habeas corpus would be available at the moment the prisoner is taken into custody." What about two hours later? Justice Kennedy saith not.
Among the other questions to which the Kennedy opinion provides little more than "a set of shapeless procedures to be defined by federal courts at some future date," in the words of the Roberts dissent, are whether the government's definition of "enemy combatants" is too broad; who bears the burden of proof as to what Scalia aptly calls "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"; whether the government can use hearsay or evidence obtained by coercive interrogation; whether classified evidence must be shared with detainees; and how long they can be held.
The best way to answer such questions would not be for the courts to make up law on the fly. As some astute analysts of war-on-terrorism legal issues have detailed--in a new book by Benjamin Wittes, Law and the Long War, and elsewhere--the best approach would be for the next president and Congress to hold hearings, debate alternative approaches, and enact comprehensive legislation resolving these and other issues of legislative policy.
Meanwhile, Bush, and probably any successor, will no doubt seek to avoid further judicial intrusions by holding future captives in more-remote locations or turning them over to allied governments. And those prisons will probably be a lot nastier than Guantanamo.
Good.
I might have known it was Bushs’ fault
Guantanamo is the ultimate example of the left in this country causing a deep cut in unity and hurting our military efforts. When their ‘patriotism’ is questioned this is one of the best reasons. All Gitmo is is a location. The prison could be on any military base in the world off shore, and it would be the same thing. It is one of many. This issue of Gitmo was created by the left/media to help tear down Bush, and their actions are despicable.
Manure. Leftist judges will kick them loose in a heartbeat claiming there was no basis for holding them in the first place.
All we need is for the USSC to inform the public of the time and place where these pukes will be turned loose and the public will take care of the problem.
So?????
.....or better yet, take no prisoners. Kill them summarily on the battlefield.
Why bother. Legislation was passed telling the court to butt out and the court ignored it.
There's lots of Hungry sharks in the Gulf of Mexico and the Atlantic ocean.
Those members of the public providing that needed service will promptly be charged with murder and/or assault. They'll borrow a few Navy JAGs do help, if necessary.
No prisoners.
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