In an essay in the New York Review of Books, NYU law professor, and liberal icon, Ronald Dworkin labels the Supreme Court’s decision in Boumediene v. Bush “a landmark change in our constitutional practice.” Until Boumediene, “American law ha[d] never before recognized that aliens imprisoned by the United States abroad” have a constitutional right to challenge their detention in American courts. The Court’s ruling “undermines the assumption, widespread among lawyers and scholars for decades, that the Constitution as a whole offers substantially less protection against American tyranny to foreigners than it does to America’s own citizens.”
Dworkin—whose unhinged Supreme Court commentary, alas, we’ve met before—means all this as praise for Boumediene. For, you see, the distinction that “many lawyers” (and other Americans with any sense) “have accepted as obvious”—that is, the distinction between the constitutional rights of American prisoners and the rights of alien prisoners abroad*—simply doesn’t “make sense in principle.” For “America owes its duty to respect fundamental human rights, including the right not to be imprisoned unjustly, to all people who come under its authority; and there can be no moral justification for discriminating against foreigners either in the definition or the enforcement of those rights.” (Emphasis added.)
Gee, professor, that’s an assertion, not an argument. And Dworkin’s further assertion that the “Constitution’s text [i.e., the Fifth Amendment’s use of the term ‘person’] suggests that this moral principle is a constitutional principle as well” is belied by the very nature—and text—of our Constitution, which “We the People of the United States” ordained and established in order to “secure the Blessings of Liberty to ourselves and our Posterity,” not to the entire world. I am certainly not arguing that we should treat foreigners unjustly, but I am contesting the notion that there is a constitutional (or moral) mandate to afford foreigners abroad—especially including those detained by the military as enemy combatants—the same rights as American citizens.
Dworkin finds it “easy to understand” how Justice Jackson, in his 1950 opinion in Johnson v. Eisentrager, might have found it “alarming to suppose that German soldiers who confessed to continuing to war against the United States had the same rights under our Constitution as any American has.” (Emphasis added.) But it “is a different question” for alien Guantanamo detainees “who deny that they have made war on the US or pose any threat to it.”
This is a remarkable argument in two respects. First, Dworkin leaves his readers the impression that the German soldiers “confessed to continuing to war against the United States” as of the time of the Eisentrager ruling. He even claims that “Jackson’s opinion emphasized … that the German prisoners conceded that they … were continuing to wage war against the United States.” Dworkin’s claim is false. Justice Jackson states merely that the German prisoners “were actual enemies” (emphasis added), not that they remained such (five years after the war’s end!), nor that they confessed to or conceded anything. Second, it would be downright silly to attach critical significance to whether a foreigner detained by the military as an enemy combatant admits or denies the charge.
Dworkin’s essay is replete with such sloppiness and silliness. For example, he proclaims that the four dissenters in Boumediene were “self-contradictory” in embracing both Chief Justice Roberts’s declaration that “the Court’s decision would have at best a ‘modest’ impact and would be of no use to the detainees because it left them, as a practical matter, with no more opportunity for freedom than they had before” and Justice Scalia’s declaration that the “decision would free dangerous terrorists and ‘almost certainly cause more Americans to be killed.’” But the contradiction that Dworkin posits rests entirely on his distortion of Roberts’s dissent. What Roberts said was that the majority decision would have “modest practical results” because it replaced Congress’s review system “with a set of shapeless procedures to be defined by federal courts at some future date” and that it left detainees “with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D.C. Circuit—where they could have started had they invoked the [statutory] procedure.” In other words, the dissenters could reasonably conclude that the immediate impact of the majority decision would be modest but that the ultimate effect would be as Scalia foretold.
In his final paragraph, Dworkin assures the reader that the “alarmist claims of Scalia, McCain, and others that the Boumediene decision imperils national security are groundless.” But Dworkin’s entire essay gives the intelligent reader no reason to trust Dworkin’s judgments about national security.
* For the sake, apparently, of confusion, Dworkin breaks this distinction in two: “the distinction between the constitutional rights of American and alien prisoners” and “the distinction between the rights of those we imprison on American soil and those we imprison everywhere else in the world”.