Last week, a bare majority of the justices on the highest court in the land called what appears to be the final strike on the administration’s policy of arresting suspected terrorists abroad and detaining them at the Guantanamo Bay naval base.
Specifically, in Boumediene v. Bush, No 06-1195, and Al Odah v. United States, No. 06-1196, five justices ruled that the detainees held at Guantanamo have the constitutional right to challenge their detention in our courts. Indeed, the majority opinion written by Justice Anthony Kennedy, joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, made it clear that these suspected terrorists -- who everyone admits are not American citizens and who have never set foot on United States soil -- “are entitled to a prompt habeas corpus hearing” before a federal judge.
While that may have come as a surprise to many Americans as they picked up their newspapers last Friday morning, the result didn’t shock legal analysts and Court watchers who had been predicting such a decision ever since the justices agreed to hear the cases. After all, this was the third strike these justices had called in four years against the policy of detaining foreign nationals at Guantanamo. In fact, every member of the High Court noted this history, with Justice Souter going so far as to tout the continuing judicial resistance to Guantanamo as “an act of perseverance.”
But such “perseverance” on the part of five unelected, unaccountable and, in the areas of national security and foreign policy at wartime, inexperienced judges is nothing to be admired -- especially in the face of clear decisions made by the elected, accountable and experienced political branches of our government. As Chief Justice John Roberts pointed out in dissent, the President of the United States and members of Congress “take the same oath we do to uphold the Constitution,” and their informed and representative judgments “about control of federal policy regarding enemy combatants” are entitled to deference and respect.
Moreover, while the bare majority may be theoretically correct in its grandiose statement that “[s]ecurity subsists, too, in fidelity to freedom’s first principles,” the practical reality remains that there are numerous serious problems with trying suspected terrorists picked up on battlefields abroad in American courts under civilian rules. The five justices who decided the case acknowledged these problems but, according to their ruling, “[t]hese and the other remaining questions are … [for] the District Court to address in the first instance” -- meaning they are someone else’s problem.
The supreme mess of impracticalities created by the five justices was apparent in just the time it took to read their 70-page opinion that spent page after page on the history of habeas corpus and the aspiration that “[l]iberty and security can be reconciled.” That same opinion refused to decide the practical and important questions of what legal standard the government had to meet, what evidence could be used to meet the standard and what a court should do if the government could not carry its burden.
All these issues are problematic, but especially the last one. After all, as Capt. Pat McCarthy, the government’s lead counsel at Guantanamo, explained, capturing these suspected terrorists and collecting evidence didn’t -- and couldn’t have -- occurred under the criminal procedure rules of our Bill of Rights. “We had to grab as much stuff as we could grab in the house and get out the door with it before the house was inundated with cohorts of the individual that we were taking custody over,” he said. “I can assure you that if you attempt to take that sort of evidence into federal district court you will not be able to convict, period.” That’s legally true, but also quite a big practical problem since there is no reason to believe our government would continue to hold these detainees if they weren’t really dangerous.
In his dissent, Justice Antonin Scalia brought this reality home by noting that “[a]t least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield.” He went on to explain that, while “[s]ome have been captured or killed[,] … others have succeeded in carrying on their atrocities against innocent civilians,” including kidnappings, murders and suicide bombings.
It’s commonplace for our elected representatives in the political branches to visit the front lines of the War on Terror -- although we acknowledge that this might be as much for the publicity as it is for the understanding. Nevertheless, it might be wise for our unelected judges to start making some of those same trips. That way, the next time they are faced with issues that directly affect our national security they will understand just what is at stake when they impose a ruling based in theory and not on fact.June 19, 2008
|Legal Issues News Protection for individual freedom provided by the rule of law news Educating the public through legal commentary news Latest legal issues affecting individual freedoms news Official legal websites news Supreme Court Docket Summary By Thomas Goldstein news Humorous court case news|