Boumediene v. Bush, 553 U.S. (2008)
On June l2, 2008, the Supreme Court ruled that alien enemy combatants1 detained abroad by our military forces in the course of an on-going war have a constitutional right to habeas corpus relief. Never before has the Constitution given this right to aliens abroad.
This (5-4) ruling is very important and will have far-reaching impact for years to come. Democrat Presidential candidate Barack Obama praised the ruling, while Republican Presidential candidate John McCain sharply criticized it.
On some levels, the ruling was relatively simple—the Court wanted to extend additional rights to foreign enemy combatant detainees. But on close examination, there were several complex issues involved. While few people will read the decision, this will not deter them from offering their opinions on the merits or flaws of the ruling. I encourage all citizens to read it and to get a thorough understanding of what the Court did in this case. This case is one of the most egregious examples you will find of judicial activism, lack of judicial restraint, and judicial pre-emption of foreign policy power and national defense power from the Executive and Legislative branches of the government. The implications of this decision are extensive and profound.
It is difficult to distill in a few words a concise summary of what happened in this case. The Majority opinion (authored by Justice Anthony Kennedy) took 70 pages. The dissent of Chief Justice John Roberts took 28 pages, and the dissent of Justice
Antonin Scalia took 25. When you add in Justice Souter’s 3-page concurring opinion—the total pages reach 126. But the reading of this opinion is a must for all patriots.
By the time you get to page 70 in Justice Kennedy’s majority opinion, you may be mesmerized or persuaded by his reasoning. The majority feels the pain of the enemy combatants at Guantanamo Bay, who for six years (some of them) have remained detained after they were captured in foreign lands fighting against our troops. To some, the length of this detention is intolerable. To some, the criticism that some international peoples level at the U.S. for maintaining the Guantanamo detention facility is more than they can stand. Five of the Supreme Court Justices appear to be in this group. Their impatience and disapproval of the nation’s operations in Guantanamo Bay has led them to hastily and abruptly take actions that have undermined over 200 years of constitutional precedence to attempt to appease enemies of America who will never be appeased because their hatred for America is unreasonable and intractable.
Previous to the Boumediene ruling, alien enemy combatants had no rights to habeas corpus protection in U.S. courts if they were confined abroad in places where the U. S. was not sovereign. The case of Johnson v. Eisentrager, 339 U.S. 763, (1950) specifically held this. (See, e.g., Scalia, J., dissenting, p. 10.) The Bush administration properly relied on this precedent, as it detained captive, alien enemy combatants at Guantanamo Bay. But this year’s ruling in Boumediene abandoned stare decisis and overturned Eisentrager (1950) and effectively overturned Hamdi v. Rumsfeld, 542 U.S. 507 (2004) for no compelling reasons. A close examination of the Boumediene ruling will show that it will not give these enemy combatants any significant additional rights, and that the Boumediene holding will serve only as a rebuke of the Bush administration by the Court, when the Bush administration had in good faith relied on Supreme Court precedents. Consequently, all that this case accomplished is to diminish the power of the Executive Branch and to enlarge the power of the Judicial Branch.
II. Problems with Boumediene
Here is a list of some of the major problems in Boumediene v. Bush:
l. The Supreme Court, for the first time, confers on non-citizen, alien enemy combatants the right to seek and obtain the protections of a writ of habeas corpus in U. S. Courts.
2. This ruling by the Supreme Court effectively overturns the 1950 case of Johnson v. Eisentrager, 339 U.S. 763. Until now, there was no question but that alien enemy combatants at the Guantanamo Bay facility would not have the right to access to
U. S. courts through the filing of writs of habeas corpus. But the majority decided to interpret Eisentrager differently—they said that since the U.S. has effective control over Guantanamo Bay, that therefore the habeas writ should be made available. The Majority denies that they overturned Eisentrager, but they offered only obfuscation and linguistic contortions rather than sound reasoning in support of their conclusion. The majority’s effort to reconcile its ruling in Boumediene with its ruling in Eisentrager is a total failure—and will convince only those whose analysis processes do not insist upon facts and sound reasoning.
3. This ruling by the Supreme Court also effectively overturns major parts of the recent, 2004, case of Hamdi v. Rumsfeld, in which case the Supreme Court recommended the precise procedures and practices that Congress and the President then enacted to ensure that the detention of alien enemy combatants satisfies all constitutional requirements. In that regard, Chief Justice Roberts wrote this:
The plurality in Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004), explained that the Constitution guaranteed an American citizen challenging his detention as an enemy combatant the right to “notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.