In 2004, the Supreme Court sowed the seeds for a national-security upheaval when it ruled, in Rasul v. Bush, that war prisoners held outside the United States had a right to challenge their detentions in federal court. Last year, in Boumediene v. Bush, the justices continued the seismic shift, holding that the right they had invented in Rasul — a right extended to aliens whose only connection to the United States is in waging war against it — was somehow rooted in our Constitution.
Thursday, the inevitable earthquake struck as a federal court in Washington took the imperial judiciary global. Though Rasul and Boumediene involved only the detainees held at Guantanamo Bay, Cuba, Judge John D. Bates (a George W. Bush appointee) ruled that alien combatants detained by our military in Bagram, Afghanistan — an active combat zone — are entitled to petition the federal courts for their release.
Let’s be clear about what this means. Judge Bates is saying that, under the Supreme Court’s rulings, the jurisdiction of the federal judiciary extends everywhere in the world, without limitation, and it includes the power to micromanage wars as they are being fought.
Judicial authority had — until about five years ago — been limited to sovereign American territory, but Judge Bates has decided that the courts have the last word wherever our government acts. To say this violates the separation of powers is an understatement. Our system insulates judges from political accountability, and our courts have no institutional competence in war-fighting or foreign policy — tasks assigned to the political branches, which answer to voters. Under this ruling the judges, not the war-fighters, will decide who the enemy is and how he is to be dealt with.
The handwriting for Thursday’s power-grab has been on the wall for five years. The Rasul decision appeared containable at the time. The Supreme Court’s 6–3 majority seemed to constrict its claim of jurisdiction to Guantanamo Bay, based on the unique circumstances of that enclave: Though Cuba retains sovereignty, the U.S. exercises total control, potentially in perpetuity, under a 1903 lease and a 1934 treaty.
Writing in dissent, Justice Scalia presciently observed that, by abandoning American sovereignty as the limit of its jurisdiction, the Court had essentially claimed judicial dominion “over the four corners of the earth.” Scalia reasoned that diplomats’ obtaining control through a lease was no different in effect from a military brigade’s obtaining it by force of arms. The majority had offered no limiting principle. If the Court claimed jurisdiction over Gitmo, there was no reason why “parts of Afghanistan and Iraq” should not be regarded as equal subjects to judicial oversight. The justices, not the commander-in-chief, would be calling the shots.
Congress tried to limit the damage. In response to Rasul’s implausible claim that the federal habeas-corpus statute gave federal courts jurisdiction over Guantanamo Bay, lawmakers amended the statute to make clear that this was not the case. Not to be denied, the Court simply swept that legislation aside. In Boumediene, the justices claimed it was not just a statute but the Constitution — the compact between the American people and their government — that somehow vested alien enemies of the American people with a right to challenge, in the American people’s own courts, their detention by the American people’s military, during a war approved by the American people’s representatives.
Predictably, Judge Bates has taken the next step. He reasoned that if the font of federal court jurisdiction is not U.S. sovereignty but de facto U.S. control, the Bagram military base in Afghanistan, which we firmly control, is no different from Gitmo. There was, however, a major difference: Bagram is in an active zone of combat. This was a circumstance even the Boumediene majority suggested was entitled to special consideration. Bates gave it none. And if Boumediene commands that everyone within U.S. court jurisdiction is vested with U.S. constitutional rights, why shouldn’t a prisoner in Afghanistan have the same privileges as a prisoner in Gitmo? Or, by Bates’s logic, as a prisoner in Pittsburgh?
The result? Battlefields are now crime scenes, and the U.S. military will be forced to behave like a team of police investigators. If they want to capture enemy agents rather than kill them, our troops had better carefully rope off the crime scene, meticulously gather the physical evidence, record witness statements, administer Miranda warnings, and make certain a contingent of defense attorneys is available for interrogation purposes. That isn’t how wars are fought.
There was a time when the courts were thought to be a branch of the American people’s government, and when the United States went to war, the courts were part of the national war effort. Today the courts exist not within but above the government. Their goal is not American victory, but global due process. They see the American people and al-Qaeda like any other pair of litigants — equals before the bar of transnational justice. Unfortunately, al-Qaeda has its own ideas about due process, which is why we entrust the fighting of wars to soldiers, not judges.