The Modern Major-General Morphs Into A Lawyer

Further analysis here

The Supreme Court decided the Git'mo habeas cases Thursday, Boumediene v. Bush, Nos. 06-1195 and 06-1196 (June 12, 2008). When cert was granted, I feared the worst. Two weeks ago, I spent an airplane ride seated next to Seth Waxman, who argued the case for Boumediene--he was quite confident of success.

We were both right. The SCOTUS reversed, 5-4, with the majority opinion written by Justice Kennedy; given his jurisprudence, confirmation of disaster. Kennedy concludes:

1. the common law writ of Habeas Corpus applies to alien enemies detained abroad in the course of an ongoing war;



2. although not "sovereign" in Cuba, the U.S. exercises sufficient control over the Guantanamo Bay Naval Station--it is "answerable to no other sovereign for its acts on the base"--to be considered U.S. jurisdiction for this purpose;



3. the laws precluding Habeas relief for detainees, and establishing alternate procedures for reviewing the legality of detention, neither met the requirements of the Article I, Section 9 "Suspension clause," nor crafted an adequate substitute.

Pending closer study of the ruling--which included a Souter concurrence and dissents by Roberts and Scalia--this post provides preliminary reactions.

The outcome utterly confuses the laws of war and domestic justice. Armed combat isn't analogous to civil justice--killing being the object of the former and the failure of the latter. Habeas has never before been expanded to non-national/resident battle captives held abroad--because the laws of war, and now the various Geneva Conventions, not the Habeas writ, apply. Perversely, it gives suspected unlawful combatants greater rights than prisoners of war. None of the 400,000 German prisioners of WWII housed in the U.S. was accorded the right to challenge his detention in District Court. And, of course, the Nazis never stationed lawyers in Stalag 13 so Col. Hogan could appeal to German courts.

Regarding national security, the ruling is "a stunning blow to the . . . war-on-terrorism". Conveying the right to counsel with access to hereto classified intel is dangerous, as Justice Scalia reminds:

During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. See Minority Report 14–15. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities. See id., at 15.

Politically, it's "a big defeat for the Bush Administration". The new procedural rights make further intelligence gathering, and even continued detention, at Git'mo all but impossible. Meaning we'll ship future captives elsewhere--what war opponents decry as unlawful rendition. Or, more simply, just shoot to kill.

Finally, considering Constitutional interpretation, Boumediene is "a sad, sad day for our country". It unilaterally extends Constitutional rights to aliens abroad, striking, as Chief Justice Roberts says, "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." It did this almost before the appeal process had begun, essentially presuming the lower courts could not protect detainees properly, rather than forcing prisoners to exhaust their remedies.

Non-citizen/resident Islamo-fascist terrorists are warring on our way of life, contemptuous of civil rights secured domestically by the rule of law. Having no connection with the United States other than attacking our soldiers abroad, they have no claim to Constitutional protection here.

Senators McCain and Obama each have pledged to close the Git'mo detention camp. No need--the Supremes did it for them.

MORE:

A good debate over at MaxedOutMama.

MORE & MORE:

Excellent analysis at Wolf Howling.