As the swing vote on a polarized United States Supreme Court,
Justice Anthony Kennedy is among the most powerful men in the
country.
With yesterday’s 5-4 decision in Boumediene v. Bush, Kennedy, who
authored the majority opinion, showed that not only is he very
comfortable with power, he is also intent on shoring up and
expanding the power of the federal judiciary system that he sits
atop.
The case dealt with alien enemy combatants held at Guantanamo
Bay Naval Base, located on a patch of Cuban soil leased by the US
since 1898. The quirky nature of the territory raises questions
about the reach of the Constitution there.
In Boumediene, the Kennedy-led majority concluded that
prisoners held at Guantanamo have the right under the Constitution
to petition for a writ of habeas corpus — that is, to petition for
a release — under the Suspension Clause (“The privilege of the
writ of habeas corpus shall not be suspended, unless when in cases
of rebellion or invasion the public safety may require it”).
Justice Antonin Scalia argues fairly persuasively in his dissent
that it this is an incorrect reading of the precedent and history
surrounding habeas corpus. But the Kennedy-led majority does more
than merely give detainees a mechanism for challenging their
detention.
The Military Commissions Act and the Detainee Treatment Act
already provide such a mechanism, which Chief Justice John Roberts
elaborates on in his dissent. (Scalia and Roberts joined each
other’s dissents, and Clarence Thomas and Samuel Alito joined both
dissents.) What the majority has done is give detainees the right
to file a habeas petition in civilian federal court.
This is bound to cause a lot of problems that the MCA and DTA
were designed to avoid. The whole purpose of these laws was to
avoid habeas petitions in open court. They established the
Combatant Status Review Tribunal (CSRT) for detainees to appeal to,
and gave the DC Circuit Court jurisdiction over appeals from the
CSRT. This system has yet to be tested, as detainee lawyers have
preferred to file federal lawsuits to circumvent the tribunal
system, a tactic that has now succeeded.
The Military Commissions Act was passed in the wake of
Hamdan v. Rumsfeld, in which, as Scalia points out, four
of the five justices in the Boumediene majority joined an
opinion in stating that “Nothing prevents the President from
returning to Congress to seek the authority [for trial by military
commission] he believes necessary.”
Adds Scalia, after quoting this: “Turns out they were just
kidding.”
INDEED, KENNEDY and the majority seem dead-set against reading the
statutory law in a way that will satisfy them. “To hold that the
detainees at Guantanamo may, under the DTA, challenge the
President’s legal authority to detain them, contest the CSRT’s
findings of fact, supplement the record on review with newly
discovered or previously unavailable evidence, and request an order
of release would come close to reinstating the §2241 habeas
corpus process [that is, the standard process for noncombatant
American citizens] Congress sought to deny them,” writes
Kennedy.
“In other words,” responds Roberts, “any interpretation of the
statute that would make it an adequate substitute for habeas must
be rejected, because Congress could not possibly have intended to
enact an adequate substitute for habeas.”
Of course, an adequate substitute for habeas is exactly what
Congress intended to enact. The goal was to find a Constitutionally
acceptable framework for trying combatants without the constraints
and dangers of civilian court.
One classic example of what can go wrong, it came out in open
court during the 1995 prosecution of Omar Abdel Rahman for the
first World Trade Center bombing that US authorities were
monitoring terrorists’ cell phones. Terrorists promptly stopped
using them.
Kennedy et al. punt on what to do about issues like that,
leaving it to the lower courts to figure out. “The majority merely
replaces a review system designed by the people’s representatives
with a set of shapeless procedures to be defined by federal courts
at some future date,” writes Roberts. “One cannot help but
think…that this decision is not really about the detainees at
all, but about control of federal policy regarding enemy
combatants.”
Scalia is blunter: “What drives today’s decision is neither the
meaning of the Suspension Clause, nor the principles of our
precedents, but rather an inflated notion of judicial
supremacy.”
In an already much-quoted passage, Scalia writes that this
decision “will almost certainly cause more Americans to be killed.”
He closes his dissent with the assertion that “The Nation will live
to regret what the Court has done today.”
He’s probably right. But Anthony Kennedy is Lord of the
Judiciary, and nothing can stop him when he’s intent on expanding
his fiefdom.
