Webloggin » Scalia: “The Nation will live to regret what the Court has done today” AND “It will almost certainly cause more Americans to be killed”

Today the Supreme Court made a decision that runs contrary to precedent in giving the privilege of habeas corpus to persons held in Guantanamo. Scalia and Roberts are not happy.

America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. See National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, pp. 60–61, 70, 190 (2004). On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania. See id., at 552, n. 9. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed.

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. (page 111 of ruling)

[~snip]

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 [sic] 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. I dissent. — Scalia

The case was Boumediene v. Bush and it was ruled in favor of enemy combatants by a margin of 5-4. Worse though the case challenges not only the executive power of President Bush but the power of Congress as well.

In Boumediene, the Court challenges congressional power as well as the executive. It strikes down as unconstitutional several provisions of the Detainee Treatment Act of 2005 and the MCA. This is a nearly unprecedented situation where the Court rejected an important assertion of wartime power backed by both of the other branches of government. To my knowledge, virtually every previous case in which the Court ruled an important wartime policy unconstitutional was one where the policy in question was adopted by the executive acting alone.

As a political matter, the majority justices might might well have reasoned that they could avoid a dangerous interbranch confrontation because the Republican Congress which enacted the DTA and MCA is now gone, and the Bush Administration has only a few months remaining. But even a Democratic administration and Congress might be reluctant to give terrorist detainees as much protection as Boumediene requires.

The fact that the decision challenges congressional power as well as executive power doesn’t mean that it is necessarily wrong. On that question, I am divided in my own mind. The difficult question is whether habeas corpus applies to enemy combatants seized in operations abroad (I don’t doubt that the Bush Administration was wrong to assert that it doesn’t apply to US citizens accused of terrorist acts and captured in the US).

Importantly, the Court does leave Congress a way out. If it wants to, Congress could still strip detainees of the protection they get under Boumediene by enacting a statute suspending the writ of habeas corpus under the Suspension Clause. With a Democratic Congress, I suspect that we might get a new detainee law that suspends the writ for certain categories of terror detainees, but also perhaps gives them more procedural rights than they got under the Republican-enacted MCA. For a variety of reasons, I doubt that the Democrats will be willing to take the risk of allowing the detainees to retain full habeas rights. If they don’t act and a terrorist released as a result of a habeas petition commits some atrocity, the Dems will take a predictable political hit. Especially if Obama wins the presidential election, expect the Democrats to enact some sort of partial suspension of habeas corpus, combined with new, but limited statutory procedural rights for detainees. At least that is my tentative prediction. - Volokh

Other reaction:

Ed Morrissey:

The previous two rulings that struck down the tribunals forced the government to quickly pass laws that allowed for them. The Supreme Court has basically ruled that the Constitution applies worldwide rather than just to the US and its residents, which makes it pretty difficult to go back to the well a third time. Also, with very little time remaining in the Bush administration, they will not have enough time to push through a third attempt to address the Court’s concerns — and this ruling appears to be much broader than the two that preceded this one.

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