PrintJuly 15, 2009
Judicial Politics and Gitmo
It should be obvious that great effort is being exerted to protect the President from the embarrassing need to retract or postpone his presidential decision to swiftly close Gitmo as legislators from both parties ardently resist the hasty termination of this indispensable facility. This must seem an unfortunate accord for those nervous that amateur politics could be blamed for the Executive Order.
Such worry is understandable given the complexity of international affairs and corresponding demand for sophisticated reasoning. Gitmo, along with its demise, represents one such complexity not easily dealt with by audacity and hope. And that will explain why the Supreme Court and not the President is responsible for the decision to see it end. With the growing interest in appointment of the Supreme Court's newest Justice, another area of grave complexity, consideration of Gitmo policy is unexpectedly fitting.
Since 2004, the Supreme Court has used the power of judicial review to generously rewrite laws regarding detainee confinement -- something the Bush administration bitterly opposed. By way of three divisive opinions, the majority justices fashioned detention policies based on courtroom fantasy rather than legal authority. Such judicial overreaching hardly merits a yawn given the anomalous history of the practice in the U.S. Nevertheless, both Congress and the Executive bristled against the Court's intrusion into their wartime privilege, setting the backdrop for a governmental clash between these national heavyweights. The central issue concerned the legality of wartime policies for detainment of enemy combatants. Much greater was the fight for control over design of those policies. So divided was the Court in rendering the final opinion that Justice Scalia issued the foreboding conclusion in his Boumediene dissent, "the Nation will live to regret what the Court has done today."
After 2001, many adversaries were captured and detained during America's counterpunch abroad. Several filed petitions in federal court challenging their detention -- Yaser Esam Hamdi, a U.S. citizen, was among them. The threshold question in Hamdi v. Rumsfeld (2004), as framed by the Supreme Court was whether the "Executive has the authority to detain citizens who qualify as enemy combatants."
Fifty years ago, Hamdi's suggestion that the President did not have the power to detain enemy combatants might have been laughable. But by 2004, our highest court was oddly unsure. The Supreme Court in Hamdi suggested its role in war by stating:
"[w]hatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."
Or maybe it doesn't. Certainly the Constitution makes no such assertion. Notwithstanding, the Court began to coddle the notion that their oversight was an indispensible, though inferred, element of constitutionality -- war powers included. To find support for this novelty, the Supreme Court cited the one thing it often finds more compelling than the Constitution -- themselves. Using a series of stopping off points, the Court in Hamdi strayed from clear constitutional precepts in favor of intrigues and philosophy, thereby setting the stage for a prominent shift in the principles of judicial deference and separation of power during time of war.
Relying on the Hamdi decision (where the Court suggested that Congress could limit future judicial oversight through legislation that stripped courts of jurisdiction), lawmakers rapidly drafted the Detainee Treatment Act -- suspending judicial review of Gitmo legal challenges except for final military tribunal decisions. Turns out, as Justice Scalia later noted, the Court was just kidding.
Taking advantage of the next opportunity, the Justices not only ignored Congressional attempts to limit judicial review, they also expanded judicial reach. Although the haunts of Hamdi dealt specifically with American citizens detained as enemy combatants, the Court used Hamdan v. Rumsfeld (2006), to extend their reach to the plight of detained aliens at large. In highbrow fashion, the majority Justices destroyed the clear intent of Congress by negative implication and exchange of constitutional clarity for scholarly squiggle. Quite at ease, the Court circumscribed both the Detainee Treatment Act of Congress and the military commissions of the President all while tramping scores of previous legal decisions staunchly hostile to judicial meddling in war. Rather than yield to congressional insistence to "butt out," the Court defiantly leveled both barrels and simultaneously fired upon the Legislative and Executive branches.
Bloodied but not beaten, or so they thought, Congress responded to the Supreme Court's ruling in Hamdan by passing the Military Commissions Act of 2006, with the sole purpose of stripping all federal court jurisdiction to hear habeas corpus petitions. It would be difficult to conceive of a more forceful reaction; and, amounted to a constitutional knockout blow that no court could duck or dodge. It landed with all the impact of a French glove slap.
The Supreme Court's response to the Military Commissions Act, in Boumediene v. Bush (2008), was amazing more for its insolence than its insight. Despite conceding both the statutory rebuke and hostile intent on page 4: ". . . we cannot ignore that the MCA was a direct response to Hamdan's holding that the DTA's jurisdiction-stripping provision had no application to pending cases" . . . "and we agree with its conclusion that the MCA deprives the federal courts of jurisdiction to entertain the habeas corpus actions now before us" -- the Court dedicated the rest of a lengthy 30 page opinion to the ruin of the MCA and any aberration that the Court would properly yield.
Read in isolation, Boumediene could hardly be considered the work of brilliance given the vulnerability of its artificial veneer. Read in harmony with Hamdi and Hamdan, it could justly be considered the work of belligerence given its sentiment and pride. On the lesser issue of detainee law, the impact of Boumediene was hardly noticed; primarily owing to its issuance in June 2008 -- shortly before the election. On the larger issue of judicial supremacy, the impact of Boumediene was likewise hardly noticed; primarily owing to the results of the election and the shift in political power. The impact is nevertheless enormous for everyone who believes in judicial integrity and the reliability of law. Both are elements of our national heritage and both were assaulted by the Court's decisions.
The dissenting Justices in Boumediene recognize the crossroads we've reached. Suggested, if not admitted, is the unconstitutionality of the opinion itself. One need only refer to a few unrestrained remarks of the Dissent to see the paradox unfurl. Chief Justice Roberts:
"One cannot help but think, after surveying the modest practical results of the majority's ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants." And, "[a]ll that today's opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary." Justice Scalia: "[w]hat drives today's decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judiciary supremacy."
The timing of the Court's Boumediene decision would be less important if it hadn't permitted its judicial ideology to be ignored. Falling right between opposing administrations, the opinion bridged the interval where no time remained for one to continue the fight and no reason for the other to acknowledge it. The incoming President was able to cuddle the Courts' opinion into policy leaving impressions that contrast misdeeds of one administration with virtues of the other -- the misdeeds and virtues of course being defined by the ideologues in gowns.
Currently, most of what is known is set forth in the Executive Order to simply close Guantanamo. And, it is now being disclosed that some of the detainees will be brought to the U.S. It should also be remembered that lower courts will rely on the Supreme Court's recent ruling to further expand judicial reach. The trouble is the impossibility of justifying every enemy detention before a federal judge -- combat Soldiers aren't regularly trained in evidentiary procedure. It might be suggested that our constitutional fathers knew as much. Ironically, we've come to the absurdity that those we most want to avoid are now being invited to our home. That is to say that by gathering up and detaining people known to wish us harm, we have given the federal court opportunity to make them our houseguests.
It is interesting how closely related these matters actually are: Gitmo, the Supreme Court, and the need for sophisticated reasoning. Given the immediacy of the Court's next nomination, it may also be another reason for those nervous about judicial politics to worry.
