Federal Judiciary

Boumediene v. Bush

By AndrewHyman

Secretary of War Elihu Root once said that, ?as near as I can make out the Constitution follows the flag - but doesn't quite catch up with it.? Apparently, it is closing in.

Today, U.S. and allied troops are on the ground fighting the Taliban and Al Qaeda in Afghanistan. In fact, there was a huge Taliban raid on a prison yesterday, and hundreds of prisoners escaped. Four U.S. Marines died elsewhere in Afghanistan.

Thursday?s U.S. Supreme Court decision in Boumediene v. Bush will make victory more difficult, even if you believe that the Guantanamo prison should be shut down by the President and Congress. The Court has poked both Congress and the President in the eye (not to mention a very sizable group of dissenting justices), as well as undercutting the Court?s own precedents, on the way to seizing greater judicial control of enemy prisoners in an overseas conflict.

The Court here has essentially overruled the old precedent of Johnson v. Eisentrager regarding the meaning of the Suspension Clause in the Constitution. Eisentrager held that enemy aliens imprisoned by the U.S. overseas cannot use habeas corpus to demand access to U.S. civilian courts. The Supreme Court on Thursday didn?t even have any business revisiting this question, as Chief Justice Roberts pointed out, given that Congress may have already provided an equivalent substitute for habeas corpus (which the Court acknowledged on Thursday).

What I find totally amazing is that the Court on Thursday not only reversed Eisentrager (without explicitly saying so), but even went much farther than the dissenters in Eisentrager would have gone. This is from Justice Black?s dissent in Eisentrager:

It has always been recognized that actual warfare can be conducted successfully only if those in command are left the most ample independence in the theatre of operations. Our Constitution is not so impractical or inflexible that it unduly restricts such necessary independence. It would be fantastic to suggest that alien enemies could hail our military leaders into judicial tribunals to account for their day-to-day activities on the battlefront. Active fighting forces must be free to fight while hostilities are in progress. But that undisputable axiom has no bearing on this case or the general problem from which it arises. When a foreign enemy surrenders, the situation changes markedly.

Al Qaeda and the Taliban have not surrendered, and hostilities are very much continuing in Afghanistan. Habeas corpus has always been subject to exceptions, and the Court has now reduced those exceptions dramatically, to the benefit of the enemy.

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Full post as published by ConfirmThem on June 14, 2008 (boomark / email).