Guantanamo Bay Habeas Corpus Case: My Take on the Opinion

This is my commentary on the Guantanamo Bay Case. The issue was one of the Constitutional doctrine of "habeas corpus," i.e. whether the Military Commission Act of 2006 was adequate for reviewing the detentions of the prisoners. The "conservative" justices voted against the decision, while the "liberal" ones voted for it. Justice Kennedy was the swing vote, who is considered to be more conservative, but not really a committed ideologically. I would remind my conservative friends, that despite the "liberal v. conservative" dicotomy which seems apparent here, both very conservative justices O'Connor and Rehnquist voted consistent with this opinion in Hamdi v. Rumsfeld. I agree with their take on the issue generally.

- Here is a press release on the decision.
- Here is the opinion itself.
- Here is some amazing journalism on the details of the Guantanamo Bay Prison

Thank you for reading, and ENJOY!
-josh


Confirming that I have no life, I have read the large bulk of the recent opinion of the Supreme Court in Boumediene v. Bush. The majority opinion was written by Justice Anthony Kennedy. The dissents were written by Justice John Roberts and Antonin Scalia. I also listened to the oral arguments a few months ago when the were made.

I have no sympathy for confirmed criminals - those who were found guilty by a fair and neutral tribunal. In fact, I believe strongly in hard labor and the death penalty as punishment. Furthermore, as a conservative and a veteran of Iraqi Freedom, this case was of importance to me, as these prisoners allegedly tried to kill soldiers like myself and my friends. However, what soldiers fight for is American principles, and habeas corpus is one of the most important ones. It’s one of those things which makes us better than the terrorists.

In this opinion, Kennedy writes a deep, nuanced opinion, while Scalia’s is somewhat shallow – from a perspective of ego, not content. I want to be careful as to say that this brings no discredit to those who agree with Scalia – only to the actual tone and rhetoric of his opinion. Scalia departs from the meat of his argument throughout, which distracts from his argument. This is a classic problem with Scalia’s jurisprudence. Conversely, it is apparent from it’s tone that it is not vanity that drove Kennedy to write his opinion.

Justice Scalia’s dissent is inciteful and instructive, but vastly overstated. Both sides agree that there is no exact precedent on this specific issue. There are, however, many cases which come close. But nothing addresses so-called “enemy combatants,” or anything analogous. This means, as Kennedy wrote, that this is a purely “political question.” The Supreme Court does have authority to answer political questions, but generally this is left to the legislature and Executive. The Court can only overrule the other two branches if it acts outside the bounds of the Constitution. The Constitution does not address this issue directly either, and so the court’s job is to apply it’s principles and intent.

However, from his opinion, I gather that Scalia may not be willing to admit this is a “political question” with no solid precedent. He states his argument, literally, as if it were irrefutable. It certainly is refutable, and that’s why five justices disagreed with him. Scalia’s unequivocal language and virtual total faith in the Executive branch is scary. The Supreme Court is the vanguard of the Constitution, and the legal principles which surround it – a vanguard against the Executive and Legislative branches. There are plenty of other cases where he expresses this, but chooses to depart from that view here.

Scalia’s tone is inflexible and unbending. It uses political rhetoric, which is usually reserved for getting votes, almost as to justify his own statements that the judiciary is ill-equipped to handle terrorism cases. He insults those who disagree with him and accuses them as being complicit to murder. He neglects the fact that tyranny has caused far more death and destruction on this planet than enemy combatants ever could. His verbal finger-wagging distracts from the legitimate argument which can be found within the clutter – the argument that the President must be given the tools to do his job on fighting international terrorism. The Court must be reluctant, but not unwilling to interfere.

Scalia actually says at one point “The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.” This is only one of Scalia’s many over-the-top ramblings, which borders in my opinion on pure McCarthyism. This kind of rhetoric is unbecoming a civilized debater, no less Supreme Court Justice.

Kennedy’s argument is essentially that, if one studies the history of habeas corpus, one could not justify the detentions at Guantanamo Bay (see pg 17 of the opinion). He also argues that the history of the idea of divided power mandates that the Executive branch cannot both imprison people and put them on trial itself (only the judicial branch can put people on trial, however temporary exceptions are tolerated for practical purposes regarding battlefield prisoners). Scalia’s refrain is that there is no example of this ever being done. He also says that the courts have denied such access explicitly in the past – referring mainly to the Eisentrager case, which held that Nazi war criminals imprisoned by the US could not challenge their detention in US courts. This is a good illustration of Scalia’s disingenuousness in this debate, because he knows that this case is easy to distinguish, as Kennedy does just that in his opinion. Scalia’s opinion is respectable, but not irrefutable.

Kennedy is much more honest in his opinion than Scalia – a feature which Justice Scalia shamelessly takes advantage of, as he constantly points out that Kennedy says that his opinion cannot be based entirely on law. However, Kennedy also said that the opposite view could not be justified by law either – a point that Scalia’s ego will not adequately confront. Kennedy’s acknowledgement of his argument’s weaknesses add strength to the opinion because they create a real starting point for dealing with this issues in the future. This is were Robert’s dissent is important; Robert's dissent is based on the fact that Kennedy neither identifies what the prisoner’s rights are, nor how the existing law fails to meet that standard. However, Kennedy’s stated purpose was not to make law in this regard – which is what would be required of such a ruling – but rather to simply preserve the legally mandated principles of habeas corpus and divided governmental power, more in character of the policy-oriented court the Supreme Court is.

If Scalia’s opinion were law (that the court cannot even consider the issue) it would lead to a grossly over-simplified, arbitrary outcome – a dodge of the issue rather than a starting point. This is because the court could never consider what habeas means in regards to America's activities outside it's borders, or check the President's activities in this regard - even after six years of an admittedly indefinite imprisonment. It’s sort of like the Principle who simply punishes every kid on the school-yard for the wrong-doing of the few – sure, it’s simple, it’s fast and you punish the wrong-doers; but you also punish many who were not guilty. Protecting those who are not guilty is worth the effort, and our country’s traditional willingness to put in that effort is one of those things which makes our country great and what separates us from the terrorists. This is not sympathy for terrorists, this is insistence that we not become so ourselves.
Kennedy’s opinion gives you the sense that he wrote this opinion as a matter of necessity. I felt like Kennedy believed the court was cornered because of the length of the imprisonment, and the inadequacy of the Military Commission Act as a remedy. The court started to feel that the President simply would not afford the court any sense that justice was being done. Furthermore, he saw a vast expansion of Presidential power, and seemingly vigorous efforts made to keep the other branches out of the loop. The Constitution was meant to protect against this.

Originalism/Strict Construction
The constant criticism of Scalia – which I agree with – is that, notwithstanding his stature as a Supreme Court Justice, he is simply not a persuasive person. His approach to the debate distracts from his argument to the point that one does not even want to listen to it. This is particularly sad, coming from a Justice who recently wrote a book on how to persuade judges. He is just as smart as any debater out there, he simply is rude. As an true originalist myself, I greatly prefer that another person would become the spokesperson for originalism.

It should be noted that Kennedy is far more originalist in this opinion than Scalia, and it is too bad the Kennedy does not do this every case. Although many may disagree about the original intent of the Constitution, the tools, methods and philosophy that Kennedy deploys are classic originalist methods. Kennedy goes through painstaking effort to create a comprehensive opinion here. He justifies his opinion by discussing the history of habeas corpus itself (starting on pg 17) and all the relevant law. His reliance on the original, founding principles of the Constitution are enough to make an originalist proud.

Kennedy also relies heavily on the structure of the Constitution in regards to divided power – another very conservative, originalist bread and butter Constitutional interpretative tool. Scalia mentions on pg 127 that the majority held the way they did out of pure jealously. I don’t think this is true, but if it is, then bravo to the court....it is supposed to be jealous! The three-branch system is designed by the founding fathers to provoke such jealousy. This is what is supposed to keep each branch at bay, limit the government’s power ect, ect, ect. As the President vastly expands his power, it is only natural, according to the Constitutional structure itself, that the legislature and court will get jealous and expand their power as well.

Scalia does bring some humor in as well. He makes a good point on pg 126, were he says that the majority has such high regard for stare decisis, yet is “blatantly” ignoring stare decisis here. The thing which makes this so funny is that he cites the court’s liberal member’s opinion in Casey v. Planned Parenthood on the issue of stare decisis – which is the present controlling law on abortion, using stare decisis to uphold the right to an abortion (found originally in Roe v. Wade). Scalia is basically saying that they love stare decisis when abortion is at issue, but not when this issue comes up.

The problem with Scalia's joke is that first, that the majority members do not agree that Scalia's position is the existing law and secondly, if Scalia wants to start citing hypocritical decisions, he will find himself more guilty than many of his colleagues; Scalia joined the majority in cases which, by no stretch of the imagination could possibly be considered interpretations of the intent of the authors of the Constitution, or any subsequent amenders of the Constitution. Two extremely un-originalist votes were in Kelo v. New London, and Gonzalez v. Raich. The fact is that the Supreme Court has more than one hypocrite sitting currently, and they include both conservative and liberal justices.

Conclusion
Bill O’Reilly agrees very much with Scalia, but made a good point on his show the night of the opinion. He said the problem was that the Bush administration just held those prisoners too long. I agree. As with many the recognized natural human rights such as habeas corpus, we simply cannot say what the threshold is. Our creator simply did not tell us how long we can hold prisoners in good conscience. However, it is very difficult to say that six years is not too long. This is what is really going on in this case.

Bill O’Reilly is right, it is the fact that the majority could not stand idly by while this imprisonment went on indefinitely that brought this case about. The justices simply cannot help but ask themselves, “why is the President holding them this long?” The assertion that the answer is “ a national security secret” can only hold water for so long. The President said himself that he wanted to close the prison as have many hawkish conservatives. They realize this situation makes the U.S. look hypocritical – after having championed certain values and put many murderers on trial, including Saddam Hussein, Ku Klux Klan terrorists, Timothy McVeigh, Charles Taylor, the Nazi War Criminals and many others.

Unlike every other case in Anglo history, the Guantanamo prisoners had absolutely no other way to challenge their detentions. They would be tried by either U.S. courts or their own captors. Granted, as Scalia says, many of them are dangerous, and have allegedly actually returned to the battlefield upon their release. Here, Scalia shows contempt for his own profession, his own branch of government, and the Constitution he is sworn to protect by saying that the courts are incapable of holding adequate trials. If this is true, then we should shut down the judiciary once and for all. We will not do that, because it is also true that many of the other prisoners have been shown to be innocent bystanders, and if Scalia has such a lack of faith in the court system, he should leave it and advocate another system.

The heart of Kennedy’s argument is that even in times of crisis, some things are sacred – habeas corpus is one of them. The sacred things are what we veterans fought for. I think we all would agree if we were imprisoned – even if you were only one of four hundred prisoners, and the only one who is innocent, you would simply want a chance to state your case somewhere, to a neutral party. Again, the efforts we go through to be sure we provide this is what separates us from them.