Take That, Linda Greenhouse!
Today's unequivocal opinion in Boumediene v. Bush will provide grist for numerous mills---legal and political---for years to come. Here I'll note three quick thoughts (with apologies for stepping on Neil's post, but the magnitude of the news demands a quick response):
1) The highly charged 5-4 ideological split, with Justice Kennedy swinging liberal, shows that analyses of this Term as less ideological than last Term---such as this one by Linda Greenhouse---were premature, and based on relatively low stakes cases. If, as I suspect, the Court decides Heller (the DC gun case) by a 5-4 margin (with Justice Kennedy likely swinging conservative there), no one will care that there were some non-ideological splits in lower-profile cases.
2) Based on my preliminary perusal of Justice Kennedy's opinion, it appears that he rejects a territorial test in favor of a functional test. That suggests that moving Gitmo prisoners to places that are more clearly outside US sovereignty---such as Bagram Airbase in Afghanistan---will not extinguish their habeas rights.
3) The political implications of today's ruling are not yet clear. The McCain campaign's recent statements that Sen. McCain supports the Bush warrantless wiretapping program indicate that Republicans will try to portray Obama as soft on terrorists. If I were advising the Obama campaign, I'd use today's decision as a shield along the following lines: "Even the Supreme Court, in an opinion authored by an appointee of President Reagan, and joined by appointees of Presidents Ford, the first Bush, and Clinton, recognized the excesses of the George W. Bush policy." Of course, the warrantless wiretapping program is distinct from the habeas issue, but hardcore Bushies defended both on grounds of Presidential power, and the average voter is not paying close attention.
I'd love to say more on this case, but now need to take off from blogging until Monday of next week because of my travel schedule. I invite discussion in the comments and further analysis by my co-bloggers.
Posted by Mike Dorf
1) The highly charged 5-4 ideological split, with Justice Kennedy swinging liberal, shows that analyses of this Term as less ideological than last Term---such as this one by Linda Greenhouse---were premature, and based on relatively low stakes cases. If, as I suspect, the Court decides Heller (the DC gun case) by a 5-4 margin (with Justice Kennedy likely swinging conservative there), no one will care that there were some non-ideological splits in lower-profile cases.
2) Based on my preliminary perusal of Justice Kennedy's opinion, it appears that he rejects a territorial test in favor of a functional test. That suggests that moving Gitmo prisoners to places that are more clearly outside US sovereignty---such as Bagram Airbase in Afghanistan---will not extinguish their habeas rights.
3) The political implications of today's ruling are not yet clear. The McCain campaign's recent statements that Sen. McCain supports the Bush warrantless wiretapping program indicate that Republicans will try to portray Obama as soft on terrorists. If I were advising the Obama campaign, I'd use today's decision as a shield along the following lines: "Even the Supreme Court, in an opinion authored by an appointee of President Reagan, and joined by appointees of Presidents Ford, the first Bush, and Clinton, recognized the excesses of the George W. Bush policy." Of course, the warrantless wiretapping program is distinct from the habeas issue, but hardcore Bushies defended both on grounds of Presidential power, and the average voter is not paying close attention.
I'd love to say more on this case, but now need to take off from blogging until Monday of next week because of my travel schedule. I invite discussion in the comments and further analysis by my co-bloggers.
Posted by Mike Dorf
posted by Michael C. Dorf @ 11:10 AM
7 Comments:
At 2:20 PM,
Mojave Joe said…
This decision is so HUGE it's GLOBAL. Indeed, we've all heard of World Literature; is this the first case in 'World Law'?
At 3:26 PM,
Sobek said…
"This decision is so HUGE it's GLOBAL."
Slow down there, sport. That's what people said about previous War on Terror cases like Hamdan, and yet the War on Terror continues.
One conservative blogger argued that Boumedienne will directly lead to more battlefield deaths, because now American troops have little or no incentive to leave wounded or captured combatants alive. I rather doubt that is the case, either.
A different blogger wonders whether soldiers must read detained combatants their Miranda rights, and whether they need to treat battlefields like crime scenes (collecting evidence and whatnot).
At 6:27 PM,
Jean said…
"collecting evidence and whatnot."
It might be nice if they actually had evidence every once in a while.
Another decision came down today, Munaf v. Geren, in which American detainees of the international coalition in Iraq tried to bar being handed over to Iraqi authorities. They argued they would be subject to torture. The court, in a unanimous decision, ruled that they could be moved to Iraqi detention. This creates an interesting situation for Gitmo (and other War on Terror prison) detainees - they can now contest their detention, and potentially be released, but have little recourse if their country of nationality (Algeria, Tunisia, etc.) is likely to subject them to detention, unfair trial and/or torture. It's a slightly different situation, so I'm sure it will be litigated further, but it makes freedom less sweet for some of the former "enemy combatants."
At 9:12 PM,
egarber said…
A couple of comments:
From the NY Times story --
President Bush, appearing with Prime Minister Silvio Berlusconi of Italy at a press conference in Rome, said he was unhappy with the decision. “We’ll abide by the court’s decision. That doesn’t mean I have to agree with it,” the president said, adding that “it was a deeply divided court, and I strongly agree with those who dissented.”
Interesting that W felt the need to say he would abide by the decision -- as if in the end it's ultimately his call. I think that might be a little bit of the unitary executive speaking. I wonder if there's a chance he *wouldn't* have abided if his approval rating was above freezing.
The court declared unconstitutional a provision of the Military Commissions Act of 2006 which, at the administration’s behest, stripped the federal courts of jurisdiction to hear habeas corpus petitions from the detainees seeking to challenge their designation as enemy combatants.
This may be a stretch, but since it's Kennedy, I'm reminded of the Boerne case, where he appeared annoyed that Congress had usurped court authority. (As I recall, the religious freedom law told the court which scrutiny standard to apply, or something close to that). Might something similar be afoot here, in that Kennedy didn't like the idea of Congress avoiding entanglements with the courts simply by removing jurisdiction?
At 11:15 PM,
Mortimer Brezny said…
I guess Congress doesn't have the constitutional power to control the Supreme Court's appellate jurisdiction, and the constitutional avoidance doctrine is meaningless. I wonder if a Justice may be impeached for deciding advisory opinions.
At 10:15 AM,
egarber said…
In a story today about the Court and presidential campaign, Greenhouse seems to agree with you, at least some:
Habeas corpus, as such, is an unlikely crowd-mover. But the decision clearly tapped into deep feelings about the entire course of the Bush administration’s plan for the fight against terrorism. The debate among the justices was ostensibly over the fine points of constitutional history and interpretation. But what it revealed was a court as divided as the rest of the country, on the eve of a historic and perhaps close election, over the very nature of the post-Sept. 11 world.
At 4:22 PM,
Sobek said…
"It might be nice if they actually had evidence every once in a while."
Why?
"Interesting that W felt the need to say he would abide by the decision -- as if in the end it's ultimately his call."
SCOTUS apparently feels it is their call as to whether Congress really has an exceptions power (turns out, Congress does not).
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