As the world has just learned, the Supreme Court of the United States ruled 5-4 yesterday that “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.” So summed up Justice Scalia in a stinging dissent in which he was joined by justices Roberts, Thomas, and Alito. Justices Kennedy, Stevens, Souter, Ginsburg, made up the majority Breyer.
There is much that can be said about the Boumediene v. Bush decision:
* How the Court was able to review the case, in light of its long-standing practice of waiting until lower federal courts have an opportunity to rule.
* How the majority torturously construed the English and American constitutional history of habeas corpus.
* How the majority dishonestly eviscerated its controlling precedent on habeas corpus.
* How habeas corpus was never intended to apply, and never did apply, to unlawful enemy combatants captured outside the United States.
* How the processes established by the political branches—Congress and the President—for handling unlawful enemy combatants more than satisfied the Constitution.
* How the majority was able to invalidate the Detainee Treatment Act.
* How the decision will severely compromise the military’s effectiveness in fighting terrorism.
* How the judicial usurpation of presidential war-powers has now become nearly complete.
* How this contra-constitutional coup has been engineered by a razor thin 5-justice majority of the Court, three of them having been appointed by Republican presidents (Stevens: Ford, Kennedy: Reagan, Souter: Bush I) and the other two by Republican bandwagoneers in the Senate (Ginsburg and Breyer).
All this and more—important as it is to our Constitution, our Nation, and our national security—will be discussed at length in the days to come, as Justice Kennedy’s majority opinion in Boumediene receives the scrutiny and obloquy that it deserves. But those discussions will have to wait, because in this election year there is a more fundamental aspect of the decision that needs to be considered.
In his dissenting opinion, Chief Justice Roberts said this about the now-unconstitutional Detainee Treatment Act (“DTA”):
"The majority rests its decision on abstract and hypothetical concerns. Step back and consider what, in the real world, Congress and the Executive have actually granted aliens captured by our Armed Forces overseas and found to be enemy combatants:
· The right to hear the bases of the charges against them, including a summary of any classified evidence.