Infinite Monkeys

The Supreme Court's Gitmo Decision

No, I haven't read the decision in Boumediene v. Bush yet, so I will withhold comment for now. Instead, allow me to point to people who have followed the case a bit more closely and have actually read bits and pieces of the decision.

• Mark Levin: "It has been the objective of the left-wing bar to fight aspects of this war in our courtrooms, where it knew it would have a decent chance at victory. So complete is the Court's disregard for the Constitution and even its own precedent now that anything is possible. And what was once considered inconceivable is now compelled by the Constitution, or so five justices have ruled. I fear for my country. I really do."

• Orin Kerr: "Congress could formally suspend the Writ as it applies to Guantanamo Bay. The Suspension Clause does not require the writ of habeas corpus; rather, it states that '[t]he 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.'"

• Ilya Somin: "For a variety of reasons, I doubt that the Democrats will be willing to take the risk of allowing the detainees to retain full habeas rights. If they don't act and a terrorist released as a result of a habeas petition commits some atrocity, the Dems will take a predictable political hit. Especially if Obama wins the presidential election, expect the Democrats to enact some sort of partial suspension of habeas corpus, combined with new, but limited statutory procedural rights for detainees. At least that is my tentative prediction."

• Paul Mirengoff: "The Supreme Court has assumed the role of ultimate arbiter of competing claims of security interests and individual rights interests... (T)here's a case to be made for having such an arbiter. The problem is that judges (i.e., ex-lawyers) are no better positioned fairly to balance the competing interests than the political branches are. These days, lawyers are trained to obsess over individual rights and access to legal process. They have no expertise in national security issues and are not answerable to the electorate for failure to pay sufficient attention to security concerns."

• Stephen Bainbridge: "One legal issue that I have not seen adequately dealt with is why the jurisdiction-stripping provisions of the relevant statutes do not have the effect of foreclosing these sort of law suits. After all, Section 2 of Article III of the Constitution says that: In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. Although the law here is not well developed, I have always assumed that Congress could strip the courts of jurisidiction to hear even claims that constitutional rights were being violated. Not that that’s a good idea. But it does seem to be what the framers intended."

• Bruce Kesler: "Justice Scalia is particularly scathing in describing the effect on our ability to wage war, especially against irregular foes. He, also, points out that the result may be to place more detainees in less hospitable holding countries than at Guantanamo, at least until a possible additional Supreme Court expansion of U.S. habeas corpus rights worldwide. That result would be most welcome by the international lawfare fraternity, ever anxious to increase its own power and reduce that of the US."

Finally, Chief Justice Roberts' summation of the decision (via The Corner):

So who has won? Not the detainees. The Court's analysis leaves them with only the prospect of 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. Not Congress, whose attempt to 'determine — through democratic means — how best' to balance the security of the American people with the detainees' liberty interests, has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation's foreign policy to unelected, politically unaccountable judges.