The Boumediene Decision: SCOTUS Uncorks a Stinker

Vincent J. Curtis                                                                            19 June 08

My piece on Donald Trump and War Crimes reminded me of this piece I wrote for the Buffalo News that was published in June, 2008.  It captures the sheer foolishness and self-importance of some the legal profession of the United States.  Justice Scalia made a brilliant descent, and his recent death also adds to the relevance of the piece.

On my return flight from Gitmo, I chanced to sit next to one of the “Habeas” lawyers, civilian lawyers who work pro-bono for the detainees.  With hours to kill and no other on-board entertainment, I struck up a conversation with him.  I wanted to understand why an American lawyer would work so hard on behalf of the enemy.

He didn’t want to talk to me at first, perceiving that I was a member of the media.  I pointed out that my tape recorder, pen, and notepad were packed away; that I hadn’t asked him his name, and that I just wanted to understand him.  He relented, and we discussed matters for over an hour before the conversation finally petered out.

By the end, I understood why he did not want to be identified or quoted.  In over an hour of conversation of trying to understand his motivation, he never once said, “Because I want justice for my client.”   He spent a lot of time arguing unfairness of process.  Now, process is not the same thing as justice, and for a while I thought that this lawyer was perhaps too fixated with the minutia of his profession and was missing the bigger picture.  By the end of the conversation, I believed that his motivation was two-fold: to strike a blow against the Bush Administration, and another for the interests of the legal profession.  The war on terrorism is a matter of major public policy, and the legal profession has been largely shut out of it.  That was his “big picture.”

In his dissent, Chief  Justice Roberts made these same points.

The Boumediene decision is the recent Supreme Court ruling that extended to the detainees held in Guantanamo Bay, Cuba, the constitutional right to Habeas Corpus.  As a result of this decision, Osama bin Laden, if captured alive, now has the right to challenge his detention before a U.S. court as if he were an American citizen.  And the U.S. court has the authority under this decision to order his conditional release if it decides that he was unlawfully detained by the Bush Administration.  (The Boumediene decision failed to say how OBL’s conditional release would be handled administratively, or where he would go.  Like the other detainees, he would possess no passport, no money, and no place of residence.  Details like these are among the reasons why Justice Scalia, in his dissent, argued the case should be ruled ultra vires, that is, beyond the powers of the Court.)

            Except for that one provision denying detainees access to Habeas Corpus in the Military Commissions Act, 2006, the decision leaves intact all the provisions thought to provide the equivalent of Habeas that are contained in the Detainee Treatment Act of 2004.  The DTA was passed by Congress to address the concerns the Supreme Court expressed in its Rashul decision, and the DTA established the Combatant Status Review Tribunal and the Annual Review Tribunal which act as a Habeas equivalent, or so the Congress and the Administration thought.  On account of this, in his dissent, Chief Justice Roberts described the decision as a constitutional bait-and-switch.

            Captain Ted Fessel, USN, the Forward Director of the Office of Administrative Review of Detained Enemy Combatants, described these tribunals.  The CSRT and ART are administrative tribunals with legal underpinnings.  They are staffed by senior ranking military officers, one of whom is a military judge.  They are administrative, and therefore not adversarial.  No lawyers are allowed, except for the judge.  The job of the tribunal is to review all the evidence which justifies the continued detention of the individual under review, determine whether the individual continues to represent a military threat, and whether the individual possesses military intelligence of future value.

            If the detention of the individual can no longer be justified, his case is forwarded to the Pentagon where a Deputy Secretary of Defense renders a final decision on continued detention or release.  Under this process, over 500 detainees were released and another 60 or so are stuck in Gitmo because no country wants to accept them.  Only about 280 continue to be held as detainees, and of these about 80 will be charged with war crimes.

            In a Habeas hearing, the judge will hear nothing more or less than what the CRST/ART tribunals heard.  The judge would undoubtedly lack the military experience with which to assess the probity of the information before him, and he will have equally inexperienced lawyers before him arguing process.  If the judgment favors the plaintiff, that is if the decision runs contrary to that of the military tribunals, it would undoubtedly be on the grounds of process: the inadequacy, insufficiency, lack of probity of the material, and absence of witnesses.  Every release would stand as a condemnation of the Bush Administration; while every denial would testify to the uselessness of the Boumediene decision.

            The decision leaves in place the CSRT/ART process.  A Habeas hearing in civilian courts could to be in addition to those established by the DTA.  The Supreme Court blew up a port-a-potty and is leaving it to others to clean up the mess.

            In his dissent, Chief Justice Roberts pointed out that the detainees did not benefit from the decision, but lawyers did.  He wrote: “So who has won?  Not the detainees.  The Court’s analysis leaves them with only the prospect for 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.”  The legal profession won because lawyers seized control of the release process and made it a matter of intense political interest.

            Justice Scalia, in his dissent, drew attention to the wider implications of the decision.  He wrote; “What drives today’s decision is….an inflated notion of judicial supremacy.”  Mocking the majority’s concern that “it would be possible for the political branches to govern without legal restraint,” he wrote, “[T]o put it more impartially, areas in which the legal determinations of the other branches will be (shudder!) supreme.”  Reversing the settled precedent of Eisentrager, this decision serves as precedent that nothing is ultra vires of the Supreme Court and that the Court now claims extra-territorial jurisdiction.  Aliens abroad have a right to ask the Supreme Court intervene on their behalf, and serves as precedent for claims to other constitutional rights.  “It sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.  The Nation will live to regret what the Court has done today.  I dissent.”

                                                                        -XXX-