The Usurpation of Executive
Authority
Boumediene v. Bush
Editor's Note: Thomas's commentary is in blue and
Marcie's is in purple.
On June 12th, the United States
Supreme Court handed down one of the worst decisions since Kelo
v. New London back in 2005. The case, Boumediene
v. Bush, was heard in December of 2007 where attorneys
for Lakhdar Boumediene argued that he had been denied his habeas
corpus rights to challenge his detention. He was detained by US
troops in Bosnia in 2002 on the suspicion he was working with
al Qaeda elements. The US military heard his case in 2004, and
since then he has not appealed their finding that he was an enemy
combatant. His lawyers have asserted he is owed his habeas rights.
The Supreme Court came to a bitter 5-4 decision, agreeing with
his lawyers, that Mr. Boumediene is indeed due his habeas rights.
Frankly, we could care less what this continually
disappointing Supreme Court says about his habeas rights. The
decision was flat-out wrong. The Writ of habeas corpus is reserved
for United States citizens alone; the ability of us to challenge
an unlawful detention was deemed one of the most important rights
inserted into the Constitution by the Framers. They knew, all
too well, of King George III's predilection for throwing people
in jail for an indeterminable amount of time, without trial. The
"activist" wing of the Supreme Court -- Justices Kennedy,
Breyer, Ginsburg, Stevens, and Souter -- decided that foreign
enemy combatants were due this right, which Justice Kennedy termed
as the "Great Writ." As Chief Justice Roberts noted
in his dissent that the "Great Writ" does not win in
this case, and neither does the nation. Justice Scalia concluded
his dissent with "The Nation will regret what the court has
done today." They're both correct. The nation was not served
in this decision. In fact, it did us a disservice, especially
in this war, because our enemies now know that they will get more
rights than even our soldiers enjoy.
Never before in this nation's 232 year history
have we ever extended such rights to our enemies. Indeed, the
court went against two prior precedents where they denied habeas
rights to our enemies. The first, Ex Parte Quiren, dealt
with unlawful combatants sent to the United States to conduct
sabotage operations. In that case, they were not bestowed habeas
rights, and the Supreme Court agreed that they had no jurisdiction
in questioning the president's wartime powers. In Johnson v.
Eisentrager the Supreme Court again held that the combatants
in question possessed no habeas rights, and that the tribunal
they were tried under was lawful. Since both of these cases, in
Hamdi, Hamdan, Rasul, and now Boumediene,
the Supreme Court has slowly whittled away the president's virtually
limitless war powers. They stated that the initial tribunals were
unconstitutional, which they were. When Congress passed the Detainee
Treatment Act of 2005 and the Military Commissions Act of 2006
they established the tribunals, as the Supreme Court had instructed
them to do, and in Boumediene they ruled those tribunals
were insufficient in dealing with the rights that the unlawful
combatants supposedly had. (An aside: Justice Scalia pointed out
in his dissent that the Supreme Court made their request in Hamdan
to establish the military commissions. Based on the majority decision
in Boumediene, and their insane reversal, it appears that
"they were just kidding.")
This is a serious miscarriage of jurisprudence
on the part of the Supreme Court. Thanks to this decision, should
the Administration be unable to find a way around this, the 270
detainees at Gitmo will get their chance to issue a writ of habeas
corpus to the federal appeals courts before they even have their
trial before the tribunals. Habeas writs are usually issued after
a defendant has had their due trial, and has gone through the
lengthy appeals process. So with the Supreme Court's decision,
these people are now put on the fast-track to the appeals courts;
bypassing those citizens incarcerated for their crimes. What the
Supreme Court did on that Thursday in June was to create an even
larger boondoggle that the government must deal with. And who
applauds this decision? The ACLU does, for they had plenty of
lawyers tied up trying to free these animals. So does Senator
Obama, who hails the decision as right and just in giving these
people rights that aren't owed to them. On the other side, Senator
McCain was justifiably outraged over this decision. Thanks to
the Supreme Court, not only do we have a problem we have to figure
out, but they have lent themselves as an issue in the current
election. Again, we witness rogue justices simply making up law
as they go along, which Justice Scalia stated in his dissent because
the majority doesn't explain how the federal appeals courts will
deal with this mess. In fact, Justice Scalia wrote: "Henceforth,
as today's opinion makes unnervingly clear, how to handle enemy
prisoners in this war will ultimately lie with the branch that
knows the least about the national security concerns that the
subject entails."
We have both thought long and hard on this
decision. We have read through the one hundred thirty-four page
opinion several times. This was all in an effort to find a loophole
of some sort the administration could use to avoid giving these
people access to our court system, which is wholly inadequate
in handling such matters. The federal courts cannot handle matters
of national security or of sensitive intelligence. Were such things
revealed in open court, our enemies would have access to information
that could set us back years in this war as to how we track them,
surveil them, and befuddle their abilities to strike us. When
Congress passed the Detainee Treatment Act, they gave the detainees
a jurisdiction where they could appeal their incarceration in
the DC Circuit Court of Appeals. (The DC Circuit Court handles
a good deal of cases revolving around agencies within the US government,
and was best suited to handle such sensitive matters.) The Supreme
Court ruled that their mandated remedy is now insufficient. We
have only two solutions to this problem. First, the remaining
detainees could be remanded back to the countries where they were
caught, and allow those nations to try them. Second, the president
could issue an executive order stating that we will no longer
take or hold prisoners. They would be handed over to the proper
authorities wherever they were caught. Could this work? Possibly.
Would the president make such a decision? He could, but we doubt
that he will.
The Boumediene decision is, by far,
one of the worst ones handed down by the Supreme Court with regard
to this war. They have continually challenged the president's
wartime powers -- powers he has solely and the Supreme Court,
and the inferior federal appellate courts, lack under Article
II provisions. In this decision, the Supreme Court embarked on
a naked power grab, usurping the powers the president has when
it comes to matters of war and national security. And for what?
As Chief Justice Roberts and Justice Scalia rightly point out
in their dissents, the Supreme Court has no clue what to do in
this war. They have no expertise to offer the government in such
issues, and they certainly don't have the necessary facts to determine
the guilt or innocence of the detainees. To them, this matter
was best left in the hands of the tribunals established, and the
military officials that oversee them. But the liberal wing of
the Supreme Court seemed to think differently, and in doing so
they have now opened up the federal courts who will, in short
order, be drowning in habeas petitions from these combatants.
No one can explain why the Supreme Court went outside of the prescribed
norms of behavior that are to be expected when it comes to the
separation of powers. But we do know that this sets a very dangerous
precedent in this war. Our enemies now know that they have rights
they shouldn't have. And Justice Scalia's scathing rebuttal of
his colleagues is a dissent well worth reading if for nothing
else than to watch him hoist his insolent colleagues up by their
own petards.
He is a scholar of history, especially American
history, and the United States Constitution. She has finished
her undergrad studies, graduating with a BA in English and history
and will move onto law school this fall where she will specialize
in Constitutional Law. Together, Thomas and Marcie form the vanguard
of conservative opinion at Hamilton,
Madison, and Jay -- a blogging site devoted to advancing the
conservative cause by challenging the liberal lies and deceit
spread by the media, and espoused by the Left in general. Both
are expert debaters, and have beaten many liberals into submission
with their collective wit, and unmatched knowledge. The pair is
married, and resides in Arizona
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