Tuesday, June 17, 2008

The Future of Boumediene v.

There's been a lot of focus on Scalia's Boumediene v. Bush dissent over the last few days, in part because the enemy combatant clause in the 5th amendment is the constitutional grounding for Bush's case, and Scalia focused on that issue directly and immediately.

Roberts's dissent was interesting too, though. He also considers the detainees "alien" "enemy combatants," but leaves it to Scalia to lay out that side of the conservative position.

Instead, he argues that habeus corpus is a poor way to get at the central issue of the case, which is whether the rights of these people are infringed by Bush's rules. Specifically, he finds it problematic that the court never specified precisely which rights the detainees have, which will create further legal problems in the future (and presumably grant "terrorists" rights that he doesn't want them to have). Here's an excerpt from his introduction, which I got from FindLaw:

The Court does eventually get around to asking whether review under the DTA is, as the Court frames it, an "adequate substitute" for habeas, ante, at 42, but even then its opinion fails to determine what rights the detainees possess and whether the DTA system satisfies them. The majority instead compares the undefined DTA process to an equally undefined habeas right--one that is to be given shape only in the future by district courts on a case-by-case basis. This whole approach is misguided.

It is also fruitless. How the detainees' claims will be decided now that the DTA is gone is anybody's guess. But the habeas process the Court mandates will most likely end up looking a lot like the DTA system it replaces, as the district court judges shaping it will have to reconcile review of the prisoners' detention with the undoubted need to protect the American people from the terrorist threat--precisely the challenge Congress undertook in drafting the DTA. All 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.

I don't know enough about the law to say whether he's right about habeus corpus being too procedural to get at the question of these people's rights: it seems, to me, like precisely the place where an argument should take place.

Nevertheless, much of the commentary (and even the court itself, if Roberts is to be believed) has treated this as a complete indictment of Bush's policies regarding Guantanamo detainees. But Roberts is definitely not thinking along those lines, and anticipates more and more difficult casework in the lower courts – casework that will probably strip away rights that progressives will not be comfortable with stripping away, and ultimately keep things the way they were before this ruling.

So, cause for celebration, yes; outright victory, no. We shouldn't forget that these successes only undo some of the damage caused over the last eight years, and the ideas and sentiments that drove the acceptance of Bush's policies are alive and well in this country.

Still, at least there's a judge and jury involved now.


  1. Like you said in the emails we exchanged, supreme court decisions surprise you in being much more interesting than you'd ever imagine.

    Also, if you haven't seen it, this piece by George Will (I know!) in yesterday's post was shocking for how much sense he made. Even he can't take McCain going on about this being one of the worst decisions in the history of the supreme court.

  2. Oh yeah, and Welcome to the Train of Thought Nick!

  3. welcome aboard, nick. looking forward to seeing more of your thoughts in the future!

  4. Thanks, guys! Glad to be here.

    That Will piece is pretty great, and does a fantastic job of emphasizing how insane McCain's denunciation of the ruling is.