13 June 2008| Terrorism, Guantanamo, and Boumediene v. Bush
by M. Harrison
On Thursday, the Supreme Court ruled in Boumediene v. Bush that the writ of habeas corpus applied to Guantanamo Bay detainees. The case was the first extension of habeas corpus - a legal tool to challenge the legality of one's imprisonment or detention - to aliens detained on foreign soil.
The decision was 5-4, and it quite riled the dissenting justices. Demonstrating their typical originalist belief that ancient legal doctrines can never adapt to new circumstances, both Antonin Scalia and Chief Justice John Roberts filed cantankerous dissenting opinions.
Both justices felt the foreign extension of the writ of habeas was unnecessary because a) it never had been done before and b) Congress, in its infinite wisdom, enacted the Detainee Treatment Act that was supposed to do the same thing for those unfortunate souls in Gitmo.
Even though the Detainee Treatment Act explicitly denied the application of habeas to Gitmo detainees, the dissenters thought it was good enough because it provided perfunctory oversight procedures as a putative substitute. According to Justice Roberts, since Congress is elected by people, Congress tried to give some review to Gitmo proceedings, and Congress passed the DTA with the noble intentions of keeping America safe, any judicial interference with the DTA is really the denial of the will of the people. It was a nice try for political theatre, but ill-reasoned as a matter of Constitutional law.
Most importantly, there are important distinctions between the true writ and the habeas-lite provided by the DTA. The DTA provided for limited evidentiary review, but not for the introduction of new evidence or other important aspects included in a habeas proceeding. The DTA only permitted a court to review whether a detention comports with the “standards and procedures specified by the Secretary of Defense” and whether those standards and procedures are lawful.
But the point of habeas is not simply a question of whether the military comports with its own standards, or even a question whether those standards are legal in themselves. The writ of habeas corpus is a question whether a specific detention is unjustified or unlawful.
The writ of habeas is an iconic feature of Anglo-Saxon jurisprudence precisely for its evaluating the justice of each detention. In the words of the great Justice Oliver Wendell Holmes, habeas is not “a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose." It "cuts through all forms and goes to the very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved, opens the inquiry whether they have been more than an empty shell.”
But even that grand purpose wasn't enough for Antonin Scalia. "America is at war with radical Islamists," the truculent justice sternly reminded us. Scalia argued that the Court's ruling would interfere with prosecution of said war, and in a stunning combination of argumentum ad absurdum and shameless demagogy, argued that the ruling may even result in American deaths.
But Scalia's thundering hyperbole was belied by reality. The entire difficulty of America's new war is that our enemy is not as clear cut as Scalia's litmus test of religious fervor. As William F. Buckley would remind the justice, "Terrorists were only yesterday engaged in ordinary occupations...shocking friends and family when they struck as terrorists."
Such a fact is unique to the war on terrorism and justifies the novel extension of habeas to detentions therein. The problem is we're not at war with Islamist extremists, really. We're at war with murderous terrorists - of whom most, but not all, happen to be Islamist extremists. In fact, according to a recent NYPD report, many of these Islamist extremists are Americans. Clearly, terrorism is not confined to a given nationality or religion.
The Arab world is filled with radical Islamists. But we're not supposed to be killing and detaining all of them; only the ones that try to kill Americans. The determination of murderous intent is essential to the effective prosecution of the war on terrorism. But because we want to severely punish terrorists - and rightly so - the high human cost makes the potential for injustice that much greater.
The obvious difficulty of determining terrorists from other radical Muslims is the entire reason why habeas is necessary to preserve the integrity and legitimacy of our legal system. The declaration of a human being as an enemy combatant, subject to military detention without legal protection, is not a decision that should be made without Constitutional limitations.
One does not seek to limit our President's prosecution of our enemies; we only seek to ensure he is actually prosecuting our enemies.
Scalia even unwittingly noted the idiocy of relying on the government to effectively decide whether a person was a true combatant. In dissent, Scalia noted that certain detainees released by the military had already returned to the battlefield, only to be captured again. Scalia used this fact to argue that the courts should not interfere with such a clearly difficult decision of whether a given detainee poses a threat to national security.
Unfortunately for Scalia, the logic persuades one otherwise. As the military has already admitted to releasing combatants, its exceedingly likely that they've also imprisoned non-combatants. And that's the whole point.
The difficulty in determining who is an enemy combatant in this 21st century war is exactly why we need review of the clearly imperfect decisions of our military and Commander in Chief. The new battlefield is not static, its soldiers are not uniformed, and as I'm sure we'd all concede, neither Congress nor George W. Bush is omniscient.
Those are the reasons why habeas must apply to Guantanamo detainees. Thankfully, the Court still got the issue right.