Ken Blackwell

Note: This piece was co-written by Kenneth A. Klukowski

The Supreme Court’s 5-4 opinion in Boumediene v. Bush will go down as one of the most egregiously-wrong decisions in history. Breaking 200 years of settled precedent, the Court has rewritten the Constitution’s allocation of national security powers. In essence, the narrow majority attacked the actions of a Commander-in-Chief in time of war. It attacked the law as rewritten by Congress in response to a prior decision of this very Court. And. it attacked the Court by aggressively ignoring its own prior decisions. The "logic" of this case sets up a bare majority of the Justices as supreme over the President, the Congress, and even other decisions of the Court itself.

The four dissenters were Chief Justice Roberts and Justices Scalia, Thomas and Alito. Roberts and Scalia wrote dissents, with all four justices signing both.

The Court, in an opinion written by Justice Kennedy, held that the writ of habeas corpus—the right of a detainee to contest their detention’s legality—applies to enemies who are not American citizens and are incarcerated abroad by the U.S. military. Yet, the Supreme Court has always held that habeas does not apply to noncitizens that are not on American soil. So, to rule as it did without overturning more than 200 years of precedent, the Court devised a brand-new rule that a location can be de-facto under U.S. sovereign control even though it is legally part of a foreign nation.

The majority held that the writ applies to Guantanamo Bay (Gitmo) because it deems it to be the equivalent of U.S. soil. It expressly allows that if prisoners were held somewhere outside U.S. control, then the writ would not apply, as has historically been the case.

In his dissent, Justice Scalia noted that the effect of Thursday’s ruling is that detainees will now be less safe, because the military will now keep detainees in foreign locations under foreign control, to avoid the question of habeas corpus. The military may even have to allow foreign governments custody of the prisoners, where prisoners will doubtless find less respect for their human rights.

Habeas corpus is a procedural right. For those covered, Chief Justice Roberts noted the legal test is, “whether the system [Congress] designed protects whatever rights the detainees may possess.” After Gitmo detainees go through the military process, they can still appeal to the U.S. Court of Appeals for the D.C. Circuit—the second-highest court in America.

Ken Blackwell

Ken Blackwell, a contributing editor at, is a senior fellow at the Family Research Council and the American Civil Rights Union and is on the board of the Becket Fund for Religious Liberty. He is the co-author of the bestseller The Blueprint: Obama’s Plan to Subvert the Constitution and Build an Imperial Presidency, on sale in bookstores everywhere..
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