Boumediene Not a Clear Win for Anybody

My colleague Tim Lynch has long supported the petitioners in Boumediene v. Bush, and yesterday wrote a blog post and statement commending the Supreme Court’s contentious 5-4 decision granting enemy combatants the right to challenge their Guantanamo detention in federal court. I have been skeptical of this position because the painstakingly legislated (but never allowed to be tested) DTA procedures seem constitutionally adequate on their face — and anyway reviewable in the D.C. Circuit — because it is dangerous for courts to trump both Congress and the President in micro-managing military decisions, because a national constitution cannot extend to all corners of the globe, and for other reasons. Yesterday’s majority opinion, providing for some nebulous future habeas right to be negotiated in the District Court for the District of Columbia (see this press release from Chief Judge Royce Lamberth, for whom my colleague Bob Levy clerked), confirmed my fears. As Chief Justice Roberts concludes in his dissent:

So who has won? Not the detainees. The Court’s analysis leaves them with only
the prospect of further litigation to determine the content of their new habeas
right, followed by further litigation to resolve their particular cases,
followed by further litigation before the D. C. Circuit—where they could have
started had they invoked the DTA procedure. Not Congress, whose attempt to
“determine— through democratic means—how best” to balance the security of the
American people with the detainees’ liberty interests [citing Justice Breyer’s
concurrence in the 2006 Hamdan case] has been unceremoniously brushed
aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to
a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the
rule of law, unless by that is meant the rule of lawyers,who will now arguably
have a greater role than military and intelligence officials in shaping policy
for alien enemy combatants. And certainly not the American people, who today
lose a bit more control over the conduct of this Nation’s foreign policy to
unelected, politically unaccountable judges.

I still haven’t finished digesting the 126-page (plus 8-page syllabus) mess that the Court issued yesterday — so much for a term without controversial split decisions — but I rather think Justice Kennedy’s prolix disquisitions on de jure versus de facto sovereignty over Guantanamo, the nature and history of habeas corpus, the Constitution’s survival in extraordinary times, the delicate balance between liberty and security, etc., etc. are beside the point.

Ultimately the issue in Boumediene is not about preserving the right to the “Great Writ” versus arbitrarily holding people for the duration of a generation-long war without recourse to judicial review. We are not Great Britain, after all, whose parliament this week approved a bill extending to 42 days the length of time the government can hold a terror suspect without charging him – and therefore without any recourse to challenge this detention. (Hat tip to my colleague David Boaz for highlighting this disgrace in the context of shadow home secretary David Davis’s resignation in protest.)

No, this was a case asking whether the people of the United States, through their elected representatives, can conceive a difference between detentions effected by law enforcement operations and those arising from military action. And establish separate procedures for handling the two. According to five black-robed activists, they cannot. Both our criminal justice system and our national security will be the poorer for it – as, ironically, will the detainees, who will now suffer more delay in processing their complaints, not less.