Justice Kennedy: American Idle
I love thursdays, we get a new column from Ann!!
After reading Justice Anthony Kennedy's recent majority opinion in Boumediene v. Bush, I feel like I need to install a "1984"-style Big Brother camera in my home so Justice Kennedy can keep an eye on everything I do.
Until last week, the law had been that there were some places in the world where American courts had no jurisdiction. For example, U.S. courts had no jurisdiction over non-citizens who have never set foot in the United States.
But now, even aliens get special constitutional privileges merely for being caught on a battlefield trying to kill Americans. I think I prefer Canada's system of giving preference to non-citizens who have skills and assets.
If Justice Kennedy can review the procedures for detaining enemy combatants trying to kill Americans in the middle of a war, no place is safe. It's only a matter of time before the Supreme Court steps in to overrule Randy, Paula and Simon.
In the court's earlier attempts to stick its nose into such military operations as the detainment of enemy combatants at Guantanamo, the court dangled the possibility that it would eventually let go.
In its 2006 ruling in Hamdan v. Rumsfeld, the court disallowed the Bush administration's combatant status review tribunals, but wrote: "Nothing prevents the president from returning to Congress to seek the authority (for trial by military commission) he believes necessary."
So Bush returned to Congress and sought authority for the military commissions he deemed necessary -- just as the court had suggested -- and Congress passed the Military Commissions Act. But as Justice Antonin Scalia wrote in dissent in the Boumediene case last week: It turns out the justices "were just kidding." This was the legal equivalent of the Supreme Court playing "got your nose!" with the commander in chief.
The majority opinion by Justice Kennedy in Boumediene held that it would be very troubling from the standpoint of "separation of powers" for there to be someplace in the world in which the political branches could operate without oversight from Justice Kennedy, one of the four powers of our government (the other three being the executive, legislative and judicial branches).
So now even procedures written by the legislative branch and signed into law by the executive branch have failed Kennedy's test. He says the law violates "separation of powers," which is true only if "separation of powers" means Justice Kennedy always gets final say.
Of course, before there is a "separation of powers" issue, there must be "power" to separate. As Justice Scalia points out, there is no general principle of separation of powers. There are a number of particular constitutional provisions that when added up are referred to, for short, as "separation of powers." But the general comes from the particular, not the other way around.
And the judiciary simply has no power over enemy combatants in wartime. Such power is committed to the executive as part of the commander in chief's power, and thus implicitly denied to the judiciary, just as is the power to declare war is unilaterally committed to Congress. As one law professor said to me, this is what happens when the swing justice is the dumb justice.
Kennedy's ruling thus effectively overturned the congressional declaration of war -- the use of force resolution voted for by Hillary Clinton, John Kerry, 75 other senators as well as 296 congressmen. If there's no war, then there are no enemy combatants. This is the diabolical arrogance of Kennedy's opinion.
We've been through this before: Should the military run the war or should the courts run the war? Continued...