By Randy Evans – CNN accurately reported the impact of the United States Supreme Court’s decision in Boumediene v. Bush on June 12, 2008 when it said: “The decision marks another legal blow to the Bush administration’s war on terrorism policies.” It is a blow to the war on terror.
The Boumediene decision involved whether terrorist aliens held at Guantanamo who have been designated as enemy combatants after being captured in Afghanistan or elsewhere abroad by the United States have the same Constitutional rights to habeas corpus protection as United States citizens. Seemingly oblivious to the implications, the Supreme Court held in a five to four decision that alien enemy combatants do have the same constitutional privileges of habeas corpus as American citizens. (Habeas corpus petitions are the procedure used to challenge criminal detentions in the United States.)
Justice Anthony Kennedy, writing for five members of the Supreme Court left no doubt when he wrote: “We hold that Article I, Section 9, clause. 2, of the Constitution has full effect at Guantanamo Bay.”
The historical importance of this decision cannot be exaggerated. Justice Kennedy conceded as much when he stated: “It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution.” Justice Scalia noted the history when he stated: “Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.”
How important is this unprecedented action in our nation’s history? Justice Scalia noted that the “nation will live to regret what the court has done today” on June 12, 2008.
Justice Antonin Scalia described the context for the Court’s opinion best when he said:
“America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. See National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, pp. 60-61, 70, 190 (2004). On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania. See id., at 552, n. 9. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed.”
The impact of the decision is real: Justice Scalia noted that “The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us.”
Consider that – the Court has made the war harder on us. What will this mean? Justice Scalia put the costs in real terms when he said that the Court’s decision “will almost certainly cause more Americans to be killed.”
But why? Why would the Supreme Court grant such extraordinary relief to enemy combatants? Was there no option or other protection for these detainees?
Chief Justice John Roberts answered that question easily enough with the following conclusion: “Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? 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. 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.”
As a result of the Court’s opinion, it is a decidedly better day for detained enemy combatants accused of presenting an imminent threat to the people of the United States. For U. S. citizens, it is not so good; no, not so good at all.