The Supreme Court held that the writ of habeas corpus applies to all the Gitmo detainees, as they are being imprisoned in territory under sovereign American control. Justices Kennedy and Scalia quibble over the meaning of sovereignty—Cuba technically “owns” the place but the U.S. practically “is the unanswerable boss of it”—but the real issue is this: who do you trust? The executive says, “trust us, Lakhdar Boumediene and his pals are wild-eyed terrorists who want to kill Americans.” Congress says, “we trust the executive to make these determinations, mostly because we’re political cowards.” The Court says, “fuck y’all, we trust ourselves.”
Scalia’s dissent is mostly spittle and spite, but his strongest argument against the decision is his invocation of the political process. In Hamdan v. Rumsfeld (2004), both Breyer and Kennedy claimed that the habeas-less military trials erected by the Bush administration were unconstitutional because they lacked express Congressional approval. Boumediene challenged, and overturned, the law Congress then passed to authorize the tribunals. The Court is playing one-on-two here: overturning an interpretation of the Constitution and a system for trying alleged terrorists that was explicitly supported by the only two branches of government that represent the voice of the electorate. [Note: whether or not you agree with Boumediene is probably a function of how you view the word "alleged" in the previous sentence.]
But that’s the point. Every power system needs a failsafe, a loophole, an escape hatch—especially democracies. The politics of Boumediene will focus on the war on terror, the ruling’s implications for Osama bin Laden (if captured, would he have habeas?), and Scalia’s gift to the McCain campaign: “it will almost certainly cause more Americans to be killed.” McCain seems to be banking on the idea the footsoldiers of the right will be galvanized by the ‘activist’ Court into enflaming their tepid support for his candidacy. Sure, they might. But the great middle that McCain has set his sights on seems to support giving at least habeas rights to the Gitmo detainees, and won’t be drawn to his candidacy merely because the most-respected branch of government decided to extend the basic protection of American law to a bunch of prisoners in Cuba. Whoever they trust to decide what to do with the Gitmo crowd, it sure ain't the Bush Administration.
This divide between the center and the right, and McCain’s schizophrenic attempts to court both, probably explains his initial responses:
“It obviously concerns me . . . but it is a decision the Supreme Court has made. Now we need to move forward. As you know, I always favored closing of Guantanamo Bay and I still think that we ought to do that.”
And the next day, after having apparently gotten the memo:
"The Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country.”
You know who to trust.
Wednesday, June 25, 2008
Boumediene Part Two: Who do ya trust?
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.