Friday, June 13, 2008


Boumediene (Part One)

Before we know how badly off track Justice Kennedy (and the liberals) are in Boumediene v. Bush, we have to know how we got here.

We'll start with Johnson v. Eisentrager, where the Court wrote about the German soldiers who fought us (more specifically spied on us for the Japanese) in China after the Nazi surrender, were captured, tried by an American Military Tribunal, convicted and held by Americans, as punishment for their war crime, in a German prison:

We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.

The Court didn't grant the German soldiers the right to habeas corpus relief and noted this pertinent point regarding the balancing of 'rights' of foreigners versus the security of American citizens:

Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands. The right of judicial refuge from military action,which it is proposed to bestow on the enemy, can purchase no equivalent for benefit of our citizen soldiers.

Then visit briefly Hamdi v. Rumsfled, where the Court (Justice O'Connor writing) held that an American citizen, held out of the country as an enemy combatant, had a right to "be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." After a nearly interminable discussion, of no interest now, Justice O'Connor had this big finish: "There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal." Justice Kennedy was silent on the subject.

The next case is Hamden v. Rumsfeld, where the Court (Justice Stevens writing) held that the military tribunals the executive branch set up to determine the status of the foreign enemy combatants held at Guantanamo Bay were not good enough, " ...military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions." Critics pointed out that illegal combatants like Hamden did not get any protection from the Geneva Conventions and the critics are right. Justice Kennedy wrote what now seems an ironic thing: "The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment." He also spent most of his concurrence/dissent whatever talking about the statutory things wrong with the Military Tribunals set up by executive order. He said nothing about the Writ of Habeas Corpus.

Then we'll seek out the important portions of the law that Congress wrote at the invitation of the Court in Hamdi and Hamden, the Detainee Treatment Act of 2005:

1) IN GENERAL- Section 2241 of title 28, United States Code, is amended by adding at the end the following:
'(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider--
'(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba;

And then I'm too frustrated actually to talk about the Boumediene case, because the Supreme Court, and all of them, ignored that proper Constitutional exception to their abiility to hear and decide this case.

But there will be a part 2.


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