Roberts began his dissent by saying that the Court has struck down the most generous procedural protections ever afforded to detainees in the history of warfare, and did so before a single detainee even appealed his detainment. Had the Court allowed at least one detainee’s case to go through appeal, it may have found their rights fully protected.
Roberts laments, “All today’s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary.” He concluded that Congress’ balancing “the security of the American people” with detainees’ rights has been “brushed aside,” and that the American people have lost control of foreign policy to unelected and politically-unaccountable judges.
Scalia made Roberts look tame by comparison, beginning, “for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.”
Central to his dissent is that in Hamdan v. Rumsfeld, the Court had said the president could ask Congress to create military tribunals if he thought them necessary. In what Scalia called a “bait and switch,” Congress did exactly what the Court required, and when the Court struck it down as unconstitutional, Scalia quipped, “Turns out they were just kidding.”
The dissent’s critical point was that habeas does not apply to noncitizens in Cuba, therefore suspending it at Gitmo is unnecessary.
The Wall Street Journal correctly observed that this is the first time in American history that the Supreme Court, which is ill-suited to conduct military matters, interfered not only in the president’s prosecution of a war, but also overrode Congress’ policy judgments.
Justice Scalia ominously concluded, “The Nation will live to regret what the Court has done today.”
Kenneth A. Klukowski is a D.C. area consultant and published writer on constitutional issues.