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A Supreme Error

The opinions expressed by columnists are their own and do not necessarily represent the views of

Upon reading the opinion in Boumediene v Bush, one must conclude that the majority knew where they wanted to go and simply had to figure out how to get there. The trip was not a pretty one. How could it be when the justices seemingly wrote a map based on ideas cherry picked from over 400 years of established law and backfilled with justifications to create a new right for alien combatants that Americans themselves do not enjoy?


They could have saved us all a lot of time if they’d told us what was clearly on their minds.

They don’t trust military tribunals to deal with those accused of being enemy combatants, even if the tribunals are following guidelines established by Congress.

That the government has probably detained some prisoners at Guantanamo for longer than they should have.

And that Guantanamo should just be closed.

Though they are willing to give it lip service, they don’t really believe we are at war … at least not a “real” war.

Therefore, they should create a new right for our nation’s enemies commiserate with the displeasure that they and the rest of the “enlightened” people have with this “war,” Guantanamo and the Bush Administration.

At least this approach would have been an honest one and based upon about as much legal justification as the approach they took.

But, instead – as Justice Scalia pointed out in his dissent – they for the first time in our nation’s history, conferred a Constitutional right of habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war – a broader right than has been given to our own citizens. The court majority did so acknowledging that they could find no precedent to confer such a right to alien enemies not within sovereign U.S. territory


The majority had simply decided that prior courts had denied such rulings based on “practical considerations.” In other words in prior cases and prior wars it had just been too inconvenient to bestow the right of habeas corpus upon non-citizens in foreign jurisdictions. So, by focusing on what they saw as “practical” instead of those pesky court precedents based upon the issues of citizenship and foreign territory … and the Constitution … the majority reached the conclusion they wanted to, since what is practical is subjective. One can only ponder the state of our nation directed by the subjective instead of the Constitution.

As Chief Justice Roberts pointed out in his dissent, the court strikes down as inadequate the most generous set of protections ever afforded aliens detained by this country as enemy combatants.

Among the problems the majority saw was the prisoner’s limited access to classified information, even though his personal representative is allowed access to it and can summarize it for the accused. Exactly what procedures would pass muster with the majority? Well, this has to be figured out by the habeas court later – and most certainly be challenged in endless rounds of further litigation.

At this stage, no one can really tell the extent to which this decision is going to add to judicial confusion, additional administrative difficulty, time and attention of military personnel or how many more prisoners will be mistakenly released to join the at least 30 who were released from Guantanamo only to return to fight the United States.


In reading the majority opinion I am struck by the utter waste that is involved here. No, not the waste of military resources and human life, although such a result is tragically obvious. I refer to the waste of all those years these justices spent in law school studying how adherence to legal precedent is the bedrock of the rule of law, when it turns out, all they really needed was a Pew poll, a subscription to the New York Times, and the latest edition of “How to Make War for Dummies.”

It is truly stunning that this court has seen fit to arrogate unto itself a role in the most important issue facing any country, self-defense, in a case in which Congress has in fact repeatedly acted. This was not a case where Congress did not set the rules; it did. But the court still decided – in the face of overwhelming precedent to the contrary – to intervene. This decision, or course, will allow for "President Bush Is Rebuffed” headlines, the implication being that the Administration was caught red-handed violating clearly established Constitutional rights when in fact the Administration, and the Congress for that matter, followed guidelines established by the Supreme Court itself in prior cases.

People can disagree over whether Congress got it right, but at least members have to face the voters. What remedy do people have now if they don’t like the court’s decision? None. If that thought is not enough to cause concerned citizens to turn out on Election Day to elect a new president, then I don’t know what will be.


I also find it just a tad ironic that in a case involving habeas corpus, which literally means that one must produce a body (or person) before a court to explain the basis on which that person is being detained, the decision of this court may mean more fallen bodies in the defense of a Constitution some of these justices ignored.


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