Boumediene Part One: Who's the king around here?

Last week’s Supreme Court decision in Boumediene v. Bush has enflamed the passions of both the left and the right. “Oh noes! The out-of control Court has betrayed America in her war on the Islamofascists!” cry the wingers at RedState, shaking with rage and muttering about treason and impeachment. “An all-too slim defense of the Constitution from the fascism of President Bush!”crow the Left at Kos and MyDD. Under the Protocol, as usual, neither and both.

The Bush administration argues that its decisions about who is a terrorist must be trusted. The case revolves around the so-called Algerian Six: a guy in Bosnia with Bin Laden’s phone number and five of his acquaintances. Citizens of Bosnia, they were arrested by Bosnian police after American authorities detected increased chatter following Sept. 11, 2001. The Bosnian Supreme Court ordered him released for lack of evidence; instead, the Bosnian police handed Algerian Six over to the American military, who flew them to Gitmo. The Bush administration has declared them unlawful combatants. They have demanded that the Bush administration charge them with a crime or release them.

Justice Kennedy’s long opinion asks two questions: does the writ of habeas corpus extend to non-citizens held in Guantanamo Bay, Cuba, and if so, are the military tribunals an acceptable substitute? To find out, he narrates the evolution of the writ from a key expression of a king’s power against his rowdy nobles (“show me who you got locked up, damn it, who’s the fuckin king around here?”) to a key check on the sovereign’s power to imprison people without cause (“sorry Mr. Rumsfeld, we ain’t just gonna take your word for it”). This section is only interesting if you swoon at the mention of things like The Case of Three Spanish Sailors, (C.P. 1779). A thrill just ran up my leg.

The key question, according to Kennedy, is really this: is the U.S. “sovereign” over Gitmo? Technically, Cuba owns it, and the U.S. leases it under a 1903 agreement giving it “complete jurisdiction and control.” Traditionally, common-law habeas writs only run to the limits of the sovereign’s territory. Kennedy holds that the U.S. is the de facto sovereign, in the sense that it is answerable to no other power for its actions there. Accordingly, the writ reaches the detainees and since the military tribunals set up by the Executive (and approved by Congress) aren’t an adequate subsititute for habeas protection, Boumediene and his fellow prisoners have the right to demand habeas relief.

In contrast to Chief Justice Roberts’s calm, lawerly dissent arguing that any habeas rights the detainees might have had not been violated anyway, Justice Scalia’s opinion sputters with rage. He briefly and deftly dodges Kennedy’s argument about sovereignty—asserting that the U.S. may be sovereign over Gitmo but Gitmo is not sovereign U.S. territory—and uses that distinction to launch attacks on the motives of the majority and the consequences of the decision. Shorter version: you’re more concerned with judicial supremacy than with American lives, Tony, and this decision will take more of them.

So what now? Kennedy doesn’t really say; in fact, he punts the issue to the lower federal courts. The judicial branch has asserted its review over the Executive’s military tribunals, but Kennedy leaves it up to lower Courts to figure out the scope of the review. Last Friday, the D.C. Circuit exercised its new power and overturned a Gitmo detainee’s designation as an enemy combatant.

The October Protocol is the fuckin king around here.