The Supreme Court has provided another nail in the coffin of executive war powers in its recent opinion on the rights of Guantanamo Bay detainees.  Earlier decisions by the court in Hamdan and Rasul ignored statutory enactment after statutory enactment that deprived these detainees of access the courts.  This is certainly not an issue of the Court trying to divine legislative intent. After reviewing the latest decision in Boumadiene, it’s clear the earlier hand-wringing about the statutory meaning of the 2001 authorization of force against al Qaeda, as well as related, clarifying acts of Congress, was a smokescreen.  The Court has ignored its earlier precedents and read into the Constitution an extra-textual right to control the other branches of government in all instances under the banner of constitutional habeas, even though its jurisdiction is subject to the Constitution’s grant of power to the Congress to restrict jurisdiction, and even though the Constitution’s text and history provides almost no basis to extend habeas review to non-citizens, captured in war, and held overseas.

Conservative critics of Bush should not forget that separation of powers concerns and the need for vigorous executive action against terrorists transcend the particular demerits of George W. Bush.  The Constitutional system does not ebb and flow when a good or bad president is in office.  All powers can be abused, and this is especially true in the case of the courts, whose own sense of restraint is the thin reed that limits most of their abuses.  The same Supreme Court that arrogated to itself the right to interfere with law enforcement activities at the state level and that divined a right to abortion in the sixties, also imagines itself the final say now on all aspects of the war against al Qaeda.  Every single decision it has authored since 2001 has allowed al Qaeda detainees the means to clog our judicial system, embarrass the President, potentially obtain release from detention, or otherwise continue their war against the United States by using our legal system to burden the armed forces and our government. These results are all the more disturbing because they are not required by constitutional text, deviate from earlier precedents, and often involve cabalistic interpretations of congressional statutes to circumscribe executive authority.

Consider the various problems with the Court’s approach.

First, the Court has deviated again from its long line of earlier jurisprudence disclaiming any judicial authority over US government actions overseas that involve military detainees, military affairs, or foreign policy. The Johnson v. Eisentrager, 339 U.S. 763 (1950) decision specifically disclaimed any authority for Article III courts to review the actions of US prison officials detaining German POWs and war criminals held in Germany. While the Court then confusingly considered the merits of the petitioners”€™ habeas petition, it ultimately concluded that the Courts were under no duty to actually grant such petitions or require military officials to produce enemy prisoners who would seek relief from US courts. As the Court said then—and forgot in its latest opinion—the “€œwrit, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.”€  Consider also, the Court’s simple failure to mention its own decisions in other areas that hold US Constitutional rights do not apply to foreigners overseas. See, e.g., United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (holding that Fourth Amendment protections do not apply to searches and seizures by United States agents of property owned by a nonresident alien in a foreign country)

Second, the Court has deviated from an extensive body of jurisprudence that demands deference to executive interpretations of Congressional enactments. In the numerous cases expanding on “€œChevron deference,“€ the Court articulated the notion that reasonable executive interpretations of laws on which more than one reasonable interpretation may be allowed will not be questioned by the Court, even if some other interpretation is arguably more reasonable than the alternatives. This principle preserves the traditional executive responsibility of implementing congressional legislation, especially when conforming abstract legislation to particular circumstances requires more detail than any statute can be expected to have. Along these lines, Ex parte Quirin, 317 U.S. 1 (1942), recognized Presidential authority to create military tribunals under a Congressional authorization of force with far less explicit language allowing detention of “€œpersons”€ than President Bush enjoyed under the 2001 Authorization of Military Force.  Since the powers of war are refracted through various legislation that clearly weighs in favor of the Guantanamo detention—the initial 2001 Authorization of Military Force and the later Military Commissions Act of 2006—the Court’s actions have nothing to do with ambiguity or filling in gaps in the case of congressional silence.  It’s a pure act of substituting its judgment for the combined judgment of the Congress and the President.

Third, the Court has deviated from an extremely deferential standard of review for executive actions that may be grouped under the rubric of military affairs. Even in the Court’s most hands-on realm of expertise and intervention—the First Amendment—the Court has shied away from interfering with actions that affect military discipline and efficiency. See generally Goldman v. Weinberger, 475 US 503 (1986). The Court suggests in Boumadiene that the procedures for the review of detainee status will always be inadequate without court review.  But there is no requirement of appellate review of any court decision at any level; appellate jurisdiction may simply be removed by statute by the Congress under its powers granted in the Constitution. The Court does not recognize this glaring exception to its theory of what good government requires, because it undermines all of its pretentious as the necessary “final say” on other political branches’ actions.

Fourth, the Court’s ruling has deviated from the principle expressed in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), that in the case of an explicit grant of authority by Congress, the President acts at the highest level of personal and constitutional authority. The GITMO detentions contrast to cases grounded solely in implied powers or executive actions contrary to explicit congressional directives. In spire of this long-established concept, in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) and Rasul v. Bush, 542 U.S. 466 (2004), the Court (1) second guessed executive fact-finding of unlawful combatant status even for prisoners held overseas and instead demanded another layer of process before special status tribunals and (2) the Court did not find that the 2001 Congressional Authorization of Military Force against Al Qaeda, which authorized the President to “€œuse all necessary force against those nations, organizations, or persons…”€ involved in the September 11 attacks, also authorized the detention of those the executive finds to be unlawful combatants. The Court took its extremely narrow reading of Congressional authorization a step further in Hamdan.

The Congress responded to these rulings, and the procedural history is telling. In Hamdan, the 2005 Detainee Treatment Act explicitly authorized the use of military tribunals and disallowed habeas review in Article III courts for claims made by the Guantanamo prisoners. It made certain provisions explicitly retroactive in effect, but the statute was less-than-entirely-clear as to its impact on pending challenges, such as Hamdan’s. Nonetheless, the statute expressed a fairly certain congressional intent to strip the Court of plenary habeas jurisdiction of challenges by the Guantanamo prisoners. Nonetheless, the Court engaged in a detailed textual analysis to show that Congress did not explicitly manifest any intent that its 2005 statute be applied retroactively, and it ruled against the executive interpretation (saying it violated both Geneva and the UCMJ’s Article 36 (b)).  The Congress quickly said otherwise in the 2006 statute, which the Court has now undone with a supposed implied jurisdiction to reach every government action under constitutional habeas, even though jurisdiction on any issue can be deprived from the Court by congressional statute.  The Constitution itself says at Article III, Section 2 that “the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”  How much more explicit could a withholding of Court authority be than the 2005 and 2006 statutes on tribunals? The Court has simply invented a right to listen to habeas cases having no limits whatsoever.  Under the Court’s logic any person, anywhere, affected in any way by US government action has redress to US courts.  Bush, to his discredit, has not explained why his power in these areas is important, and he also lacks the moral courage simply not to enforce the Court’s ultra vires decisions.

In Boumediene, the Court undertakes a lengthy, historical analysis of habeas that is inconclusive by the majority’s own admission.  But instead of deferring to coequal branches of government, it forges ahead with interference.  Rules of jurisprudence rightly contain certain principles of deference, particularly when traditional prerogatives of another branch of government are implicated. Those principles are especially appropriate in this case of an executive military function. The reasons are plain.  First, the Congress has ample power of its own to reign in executive abuses in this arena, not least because it can withhold funding. Second, the President surely must be understood by precedent, structure, and text to have some kind of inherent authority to address military affairs, including treatment of prisoners, under the “€œtake care”€ clause and the “€œcommander in chief”€ clauses. Finally, even common says says the Court has little appreciation for the swift means by which military decisions, including detention decisions, must be made.  Warfare is not a situation of “better ten guilty men go free, rather than one innocent be held.”  In war, these presumptions are reversed.  When non-citizens overseas are involved, it’s not a question of our common welfare as a people being involved at all. The Padilla case, which I admit is more complicated, is very different from foreigners captured overseas in Afghanistan.  The only restraint is prudential, military necessity, executive interpretations of treaty obligation, and the common-sense view that we do not want innocents detained.  The Court’s interference has been costly already.  Under the overly deferential review regime set up to address the Court’s directive in Hamdan, many detainees have been released only to return to the battlefield.

Un-uniformed, extra-national forces that commit terrorism have long been given few rights under the law of war. And that law has long been administered with little outside court control of the executive branch worldwide. This context has been completely lost on the Court from its long list of forays since 2001 into the arena of unlawful combatants. The Court, uncomfortable with its duty to defer to the political branches has simply ignored and defied its prior precedent without regard to the long-run consequences. These consequences include the negative effects of this decision on US morale, the actuality under the Court’s oversight that dangerous terrorists will be released from custody, and the potential logistical and military nightmare appellate review will do to detention procedures and military commissions.  Today the decision is something of a nuisance; how much more burdensome would it have been in a time like WWII where hundreds of thousands of POWs and other detainees were held for the duration of hostilities?

The Court’s decision ultimately betrays three major biases, all of which are very dangerous to our constitutional system and the future success of the war against al Qaeda. First, the Court will countenance no distinction between military and peace-time realities.  All of the Court’s decisions demand, in effect, the same level of court involvement and scrutiny involving unlawful combatants that are not (and could never be) signatories to the Geneva Conventions entitled to their protections. Second, the Court basically shows at every turn, in spite of its lip-service to the destruction of 9/11, that it does not think this is a real war, with a real enemy, where the safety of actual Americans is in grave danger. Why do I know this? Because the Court has resisted every demand to treat these military measures in military operations against a military organization differently from ordinary criminal procedures. Here, as in criminal cases, the burdens, procedures, rules of evidence, and likely outcomes are designed to favor defendants heavily under the Court’s recent line of cases. Finally, the Court has moved away from its own precedents allowing other branches of government to act without its ultimate approval and involvement. Doctrines of nonjusticiability and “political questions” are apparently out the window when it comes to the war against al Qaeda. 

The Court’s concerns are clearly not the human rights of the suspects, so much as the power of the courts as a whole.  A friend in a discussion offline put it as follows:

It seems to me that a part of the difference of opinion on the Habeas issue is what the principle of Habeas Corpus is about.  The conservative line tends to view it as an individual civil right.  Thus, it is designed to protect citizens and those others as determined by law.  Kennedy’s opinion seems to me to have a very different slant.  He seems to think it is a way to check the power of the executive branch, especially as a separation-of-powers issue.  In that way, it seems a right more properly of the judicial branch, and extends to anyone who might come under the power of the executive branch.  The right then is more a part of the fabric of our form of government, and only secondarily a right of the individual.  To the extent it belongs to the individual, the court seems to consider it more a natural right”€”a right that exists to people as human persons qua persons (not citizens) to be free from undue governmental power.

There is another factor leading the Court astray:  any distinction of citizen and non-citizen is missing from the Court’s view.  It’s as if war—the starkest demonstration of conflict of the loyal and the disloyal, the native and the foreign—is just too old-fashioned.  It’s clear that Obama and other critics of the GITMO procedure are less concerned with the various strategic mistakes of the Iraq War than they are with a generalized pacifism and discomfort with the inherent distinction of war and peace. Otherwise, they’d be up in arms against these Court interferences with the non-Iraq campaign against terrorists. Obama and Justice Kennedy both reveal a lawyer’s obtuse disregard in general for non-legal situations such as military operations that require alacrity, discretion, and force.  Under their logic, a Court could stop D-Day with an injunction, and US commanders can be hauled before US courts to answer for treaty obligation compliance that has, up until now, been left to the President’s interpretation. 

All of this is not to deny the obvious:  abuses can happen.  Innocents may be mistakenly detained.  Their detention may last a long time.  And this would be unfortunate in the extreme.  But the whole difference of war and peace, of foreign terrorists and domestic criminals, is that the former are more dangerous and require different techniques to be resolved.  The balance of concern for citizen safety and the rights of the innocent is reversed from the ordinary situation of civilian law enforcement.

For a constitutional system that is supposed to embody a balance of powers, in which unreviewable action by any one branch is suspect, the Court never expresses any doubts about its own rectitude and authority, even when it interferes in traditional executive wartime responsibilities. As always in matters of politics, we should ask: “€œQuis custodiet custodes?“€