So who has won? Not the detainees. The Court's analysis leaves them 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 DTA procedure. Not Congress, whose attempt to "determine—through democratic means—how best" to balance the security of the American people with the detainees' liberty interests, has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation's foreign policy to unelected, politically unaccountable judges.That's just his summation. The actual argument is devastating. Hard to know how the majority could read it without shame. The main problem is that the Court has basically asserted its right to conduct our foreign policy, over the heads of the elected Commander-in-Chief and the Congress. As the Chief Justice puts it:
the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law's operation. And to what effect? The majority merely replaces a review system designed by the people's representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority's ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.
Essentially the Court has ruled that a principle going back to the Magna Carta means bupkes (so much for precedent), and (as I understand it) Commanders-in-Chief must pause in the middle of the operations of war to try each captive individually in domestic courts. (Let's be sure each is Mirandized while we're at it.) Justice Scalia fumes:
Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable "functional" test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson's opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today.He uses the term "live" advisedly, I suppose, since the true meaning of the ruling is that The Nine rule us all. I suggest the President immediately release all detainees to the precincts of the Court --perhaps directly to Justice Kennedy's chambers? Coverage galore at Bench Memos and Scotusblog.
Update: Reactions, curtsy to the Standard blog. Sen. Kyl:
I ask those who laud today’s decision as a victory whether they would want Osama bin Laden, if captured, to be processed by our civilian judicial system?A little light in the form of Sen. Lieberman's promise:
“I regret the outcome of the majority’s opinion and I hope that our country is not rendered less safe as a result. To the extent there are opportunities to work with colleagues on both sides of the aisle to change the outcome of the Court’s decision, I promise to do so.”Likewise Sen. Graham:
I am deeply disappointed in what I think is a tremendously dangerous and irresponsible ruling by the U.S. Supreme Court.
The Court’s decision is bad on many levels and I will continue to review the decision and determine its sweeping effect on our military. I will also explore the possibility, if necessary, of a constitutional amendment to blunt the effect of this decision when it comes to protecting our men and women in the military and our nation as a whole.
The Court has conferred upon civilian judges the right to make military decisions....
Two senators --liberal ones at that-- telling the Court it's flat-out wrong and vowing to "blunt" the decision. Please, Lord, let that be more than words. Maybe this decision will be the instrument that reminds Congress & the President they have power to act against the Court . And maybe it has always had to be liberals who will finally take action against the imperial courts. What were we noting recently about decisive battles not taking place on the ground or with the parties we expect? (Only, please, no Constitutional amendments.)
I forgot to mention, relative to the title of the post. If judges make it difficult to deal with enemy prisoners, doesn't it increase the likelihood that battlefield commanders will take no prisoners? Not a humane decision, doesn't seem to me. See?
