All hail the imperial court.
In a bitterly divided 5-4 decision, the Supreme Court ruled Thursday in Boumediene v. Bush that alien enemy prisoners, waging a jihad against the American people and captured by our military in a war authorized by Congress, have a right — under our Constitution — to petition our courts for their release. So doing, the Court invalidated laws it had only recently implored Congress to enact, laws that provided these prisoners with generous protections never previously extended to enemy operatives in American history.
Justice Anthony Kennedy, writing for Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, dictates that Americans must regard enemies as if they were mere criminal defendants, entitled to an exacting legal process — access to discovery, witnesses, counsel, etc. — that will, as a practical matter, make it impossible to detain them without shutting down interrogations prematurely and informing the enemy of our national-defense secrets.
There can be no justification for this stunning conclusion. Habeas corpus is the right to have the lawfulness of one’s detention tested before a judge. It is enshrined in the Suspension Clause (Art. I, Sec. 9) of the Constitution — the compact between the American people and the government they created — in order to protect Americans from arbitrary arrest and adhesive conditions of confinement. As a judicial remedy, it extends only where the federal courts have jurisdiction.
Thus, as Justice Scalia elaborated (joined in dissent by Chief Justice John Roberts, and Justices Clarence Thomas and Samuel Alito), habeas has never been thought to extend to the benefit of aliens outside the United States — much less those who are at war with the United States, and less still those who wage such a war by mass-murdering civilians, using women and children as human shields, and perpetrating other depravities that flout the laws of civilized warfare.
In 1950, the Supreme Court denied habeas corpus to alien enemy combatants in Johnson v. Eisentrager, a case involving German operatives captured in China and held in a zone of postwar Germany fully controlled by occupying American forces. Writing for a unanimous Court, Justice Robert Jackson observed that there had never in history been an
instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.
Eisentrager was binding precedent. In refusing to revisit what even supporters concede are badly flawed rulings that invented a right to kill the unborn, the liberal justices tell us they are constrained by binding precedent. Alas, precedent does not bind when the same liberal justices are bent on inventing rights for foreign jihadists.
Kennedy spins a counter-historical principle that judicial power simply must extend wherever in the world the political branches may act. And for good measure the majority blithely ignores, yet again, that Guantánamo Bay (where the combatants are detained, at least for now) lies beyond the judicial power because it is not sovereign American territory — no more than occupied Germany was in 1950.
Nevertheless, let’s suspend reason and stipulate that the framers of the Constitution intended to extend the protection of the American people’s courts to the American people’s enemies in a time of war with nearly 200,000 young Americans in harm’s way. There was still the fact that Congress — at the beckoning of this very Court — had provided the jihadists held at Gitmo with an unprecedented array of protections, including judicial review. In return, as Chief Justice Roberts recounted in a withering dissent (also joined by Scalia, Thomas, and Alito), the Court has now made Congress “the victim of a constitutional bait and switch.”
Habeas corpus has never been a settled substantive quantum of judicial review. It is, Roberts explained, a procedural remedy. Due process is a flexible concept that ebbs and flows with the demands of the circumstances — literally, it is the process that is due.
In wartime, it had never been thought to include any systematic access to the federal courts for enemy prisoners (at least before the Court’s astounding 2004 Rasul decision granted combatants statutory habeas rights). By contrast, in the 2005 Detainee Treatment Act (reaffirmed in 2006 by the Military Commissions Act), Congress granted the detainees a right of access to a top federal court, the U.S. Court of Appeals for the D.C. Circuit, in order to challenge the military determination of enemy combatant status (known as a Combatant Status Review Tribunal, or CSRT).
As Roberts detailed, the people’s representatives thus enacted thoughtful measures, balancing the imperatives of military need and due process. Measures that
permit detainees to dispute the sufficiency of the evidence against them. They allow detainees to challenge a CSRT panel’s interpretation of any relevant law, and even the constitutionality of the CSRT proceedings themselves. This includes . . . the ability to dispute the Government’s right to detain alleged combatants in the first place, and to dispute the government’s definition of “enemy combatant.”
For Anthony Kennedy and the Court’s four other transnational progressives, this is not enough. Only four years ago, in Hamdi v. Rumsfeld, the Court indicated that streamlined military proceedings, coupled with a judicial review that would be deferential to the commander-in-chief conducting a war authorized by Congress, would be sufficient to justify the detention of an American citizen held in the United States as an enemy combatant. Now, the runaway justices say that foreign al-Qaeda killers detained in Cuba can march right into the federal district courts and demand what, suddenly, are their constitutional rights.
In those courts, judges — without guidance and emboldened by the high court’s usurpation of war powers — will be encouraged to make it up as they go along: More access to classified information? Subpoenas commanding the testimony (and cross-examination) of our soldiers regarding the circumstances of capture? Miranda warnings? Prompt access to counsel, which is certain to halt any questioning — and thus any revelation of lifesaving intelligence — before it can even start? Full-blown trials in the criminal-justice system with the same presumptions of innocence, privacy, and other privileges vested in American citizens?
And who will adjudicate the resulting mess? Our imperial court, of course.