This post is for those who are glad that the detainees held at Guantanamo Bay are going to be allowed habeas corpus hearings in U.S. Federal Court. Boumedine vs Bush (pdf) was an awful decision. And even if you believe that on the merits that this particular case was decided correctly, none of us should be happy at all about the way it came to be decided. The Supreme Court overstepped its bounds on emotional grounds, and it is doubtful that either of the other branches have the will to tell them so.
The government of the Unitied States is built on a system of checks and balances. One of the balances is that while Congress passes laws, the Courts get to decide how those laws are applied. Since early in the history of the republic, the courts have decided if laws are in accord with the Constitution.
Another of the checks and balance is that Congress gets to decide the makeup of the Judiciary, within limits. In particular, Congress, as set forth in Article III section 2, gets to decide jurisdiction (emphasis mine):
In all Cases affecting Ambassadors, other public Ministers and Consuls, andThis is not a matter for the courts to judge. If Congress passes a bill and the President signs into law a measure exempting some class of cases from Supreme Court jurisdiction, then by the plain text of the Constitution the Court cannot exert authority over that class of cases. Professor Bainbridge agrees.
those in which a State shall be Party, the supreme Court shall have original
Jurisdiction. 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.And yet Justice Kennedy, writing for the majority(pdf), says:
Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.But as noted, Congress does have the power to limit the Court's jurisdiction, and with the Detainee Treatment Act and the Military Tribunals Act, Congress did exactly that.
To illustrate some of the arguments in this matter, and to show why those who side with the Court got it wrong, we take a little side trip to Geneva. A story in the Jun 23, 2008 issue of Newsweek makes some fundamental errors in its analysis, I think primarily because of its full-throttle Bush Derangement. The story says the Bush team "overplayed a winning hand" by, among other things, not giving enough rights to detainees.
Historically, prisoners of war have no rights in U.S. courts. But even so, they are released when the war ends. The War on Terror has no foreseeable end. What's more, since the terrorists don't wear uniforms, it can be hard to discern who the real enemies are. Under the four 1949 Geneva Conventions, prisoners of war have some rights. But after 9/11, hard-liners in the administration decided that terror suspects brought to Guantánamo and various secret prisons around the world lacked any of the protections of the Geneva accords because they were "unlawful combatants."
The Geneva Conventions are supposed to reflect how we treat prisoners we capture in war. At least, we should not be in violation of the Conventions.
The Conventions are multinational treaties adopted among nations desiring to retain a modicum of civilization, even in time of war. To that end, the signatory nations have agreed to treat four classes of people differently when captured during war:
- Noncombatants - individuals neither wearing a uniform nor engaging in hostilities
- Lawful Combatants - individuals in uniform and subject to chain of command, whether engaging in hostilities or not
- Unlawful Combatants - individuals engaging in hostilities but either not wearing a mark or uniform or not subject to command, and in any case, disguising their combatant status
- War criminals - those who attack noncombatants or use banned weapons or tactics
Lawful combatants may be detained to prevent them from engaging in hostilities, but must be provided with food, clothing, medical care, and be permitted to abide by their rank structure. They may not forced to answer questions other than to identify themselves.
Unlawful combatants are 'not to be afforded the same protection as lawful ones, so as to encourage the wearing of uniforms. As Toni Pfanner, Editor-in-Chief of the International Review of the Red Cross, said in his 2004 Military Uniforms and the Law of War:
The legal history of Article 4 (A) of the Third Geneva Convention shows clearly that only irregular forces must fulfil the four criteria in order to qualify as prisoners of war, and that the two categories were separated deliberately. Early on, the Rapporteur of the Special Committee dealing with the question of definition of prisoners of war specified that only militias and volunteers not forming part of the regular armed forces should be subject to thefour criteria [...]Two years ago, the Bush Administration responded to criticism from Congress and Court decisions by granting Geneva rights to all prisoners, no matter if they were captured in or out of uniform. This fundamental error, disregarding the very purpose of the Geneva Conventions, led directly to the current situation.
"A fundamental premise of the Geneva Conventions has been that to earn the right to protection as military fighters, soldiers must distinguish themselves from civilians by wearing uniforms and carrying their weapons openly (…). Fighters, who attempt to take advantage of civilians by hiding among them in civilian dress, with their weapons out of view, lose their claim to be treated as soldiers. The law thus attempts to encourage fighters to avoid placing civilians in unconscionable jeopardy."
The implications of the Court's decision in Boumedine are ominous. The Supreme Court has arrogated to itself the right to decide its own jurisdiction, contrary to the Constitution. The Court inserted itself into the conduct of our national defense, clearly the prerogative of the Commander-in-Chief. It did it in such a way as to extend the rights reserved for citizens not only to prisoners of war, but to those who by the Geneva Conventions are not even supposed to have the rights accorded POWs. And they did it in disregard of their own precedent.
But my guess is that no one will call them to account.
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