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June 18th, 2008
08:00 AM ET

The Supreme Court – rewriting the law

[cnn-photo-caption image=http://i.cdn.turner.com/cnn/2008/images/05/07/art.supremecourt.jpg]
Kevin R. C. Gutzman, J.D., Ph.D.
Associate Professor of History
Western Connecticut State University

The Supreme Court once again follows its customary practice of grabbing new power for the judiciary in the latest Guantanamo case. As usual, it does so while insisting that it is only neutrally applying its long-standing precedents.

The petitioners in Boumediene v. Bush are aliens held by the military as enemy combatants at Guantanamo Bay, Cuba. They insist that they are entitled to habeas corpus review of their detentions. However, nonresident enemy aliens have no right of access to American courts in wartime under the Court’s ruling in Johnson v. Eisentrager (1950). So military tribunals at Guantanamo, established by the President in response to congressional legislation, are designed to protect aliens’ rights.

The writ of habeas corpus historically has been available only on U.S. territory. But Guantanamo is Cuban territory, leased by the U.S. One might have thought that would settle it, and the Court would allow the Bush Administration to implement the congressional legislation intended to protect the human rights – which are not the full rights of U.S. citizenship – of detainees such as the ones at Guantanamo.

The majority in Boumediene noted, however, that Guantanamo is under exclusive American control, even though it's not American territory. It said that Eisentrager therefore did not apply, and the writ of habeas corpus does apply to Guantanamo. And, it said, the decision complies with precedent.

The problem with that logic is that the most recent precendent, Eisentrager, arose in the American occupation zone in Germany after World War II, where the U.S. military had as clear control as at Guantanamo today. In that case, the majority denied that American federal courts had any power there whatsoever. As one dissenting justice in that 1950 case put it, “the Court’s opinion inescapably denies [federal] courts power to afford the least bit of protection for any alien who is subject to our occupation government abroad, even if he is neither enemy nor belligerent and even after peace is officially declared.” If this precedent were applied, the Administration could use military commissions, as Congress intended, and detainees couldn't get themselves released through a habeus corpus argument, or obtain other civil court protections.

Because it bucks Eisentrager's clear precedent, Boumediene is a radical rewriting of the rules. It's clearly legislating from the bench–precisely what conservatives claim liberal judges do.

Justice Kennedy’s disingenuous claim to be following precedent is typical of judges who use their power to bend the law to their own views. Such ignoring precedent and the law by Kennedy and his majority in this case is a besetting problem of the American political system.

Editor's note: Kevin R. C. Gutzman is co-author with Thomas E. Woods, Jr., of the forthcoming Who Killed the Constitution?: The Fate of American Liberty from World War I to George W. Bush.


Filed under: Crime & Punishment
soundoff (13 Responses)
  1. Kristina

    Boumediene is not radical liberalism, it's progress. If McCain wants to continue a war for the next 100 years he can't just throw whoever he wants into Gitmo and leave them there to rot. It's purely unamerican and just because they're in American-leased Cuban land instead of the continental United States doesn't make it any more acceptable or ethical. Treating people humanely is what separates America from the "bad guys" and we are becoming the bad guys by disregarding our Constitution with places like Gitmo.

    June 18, 2008 at 8:41 pm |
  2. Sabrina in Los Angeles

    I thought they were supposed to be interpreting the laws not writing them; Isn't that the job of the legislature to write them and the judicial to uphold them?

    Not making a judgment on this one but just in general.

    June 18, 2008 at 6:40 pm |
  3. Arachnae

    To Annie Kate, who writes: "For the detainees in Guantanamo who were captured in war trying to kill Americans, are not citizens, and would in all likelihood take up arms again against Americans should they go free, I do not see where the rights exercised in a civilian court would apply to these military prisoners – a military court has in the past taken care of these matters."

    The only problem with this argument is that many of the detainees in Gitmo were not captured 'trying to kill Americans' but were in some cases bystanders captured and sold to the US forces by bountyhunters just looking to make a buck. These people have been imprisoned for six years with no legal avenue to redress the injustice done to them. This is the very definition of tyranny and has no place in American jurisprudence.

    June 18, 2008 at 6:11 pm |
  4. Alex

    Lesson in law – If you want to hold bad guys or "detainees," don't hold them on American soil or in an area where the Supremes can take jurisdiction. In fact, get what info you need and dispatch them elsewhere.

    June 18, 2008 at 5:50 pm |
  5. Chris

    McCain does not want to debate – his campaign and the RNC know he will get pummeled. These town hall meetings are for the birds – man up and debate.

    With regard specifically to this article, I commend the Supreme Court. And, Arachnae, you are right on. I have no "love" for the folks at Gitmo, but going down the road of suspending rights will land us one day on a situation where even American citizens merely "suspected" of something will get locked up without recourse while the government figures out what to do with you. A Canadian citizen went through this and was tortured to boot. Ask him what he thinks about his "vacation" at Gitmo.

    I'll be glad to hear what anyone's got to say, after they've experienced being locked up somewhere, treated like an animal and tortured with NO contact from the outside world and no hope for getting out. And if after that you are still for suspending rights, then I can't argue with you.

    June 18, 2008 at 5:44 pm |
  6. Mike, Syracuse, NY

    If these people are not Americans and not on American soil, why do they have any rights other than those granted unlawful combatants under the Geneva Conventions? This requires that the detaining power (in this case the US) treat the prisoners humanely, but does not require habeas corpus.

    June 18, 2008 at 4:51 pm |
  7. Stacy

    Annie Kate, you are missing the point. We are not experiencing a rebellion or invasion and therefore we should not be suspending habeas corpus. A rebellion would involve our own citizens rising up against the government, which is clearly not happening. And who is invading us? I'm not saying that some of the detainees aren't guilty of horrendous crimes, but this isn't about them, it's about our own moral standing. By keeping the writ we can punish the guilty, keep ourselves safe, and still hold the moral high ground.

    Just because the writ has been suspended at other times in our history doesn't make it right. The internment of Japanese Americans during WW2 is now seen by many as one of our country's most shameful acts.

    June 18, 2008 at 2:53 pm |
  8. marty

    Thanks for the post. Very good.

    June 18, 2008 at 2:17 pm |
  9. angel

    I feel that McCain and Obama need to come and have like a town hall meeting or a debate regarding this off shore drill situation. I dont understand to much about it why the demorcrates are saying no and the replublicans or saying yes, The republicans have not done any thing in 8 years and then all of a sudden they think this is the best idea in the world but no one has actually broke this down to the American people explaining the positive and the negatives regarding this drilling. Please some one on cnn ask the question to both canidates to explain there side of this and break it down to the American people of our understanding

    June 18, 2008 at 1:40 pm |
  10. Gary Chandler in Canada

    If the information in Wikipedia on this issue is accurate, it shows McCain to be a deep and unfathomable flip flopper.
    While, in a grand humanitarian gesture, he co sponsored a Bill to end military torture of detainees, then he vociferously opposed habeas corpus for them.
    He also voted against closing a loophole that made his Bill toothless, namely to end CIA torture. (electric shocking, water boarding, forced nudity, and sexuality, and 15 other measures) WHY or why, would he not want to make his own Bill effective!!?? Yes, he ended military torture, but opposed ending CIA torture?????
    Besides dichotomy, he also showed poor strategic thinking. Instead of voting against the Bill, and encouraging Bush to veto it, he could have laid back and put on a 'front' of being a straight talker. The Bill was defeated without him.
    (Ever notice his campaign is not using the 'straight talk' motto?)
    Taxing the rich, offshore drilling, Hagee Parsley, green background, flop flip.
    At least Bush had some 'charm' and an IQ.

    June 18, 2008 at 12:51 pm |
  11. Arachnae

    You have got to be kidding. The right to challenge your detention in court is a human right. If the administration can claim the right to detain people in perpetuity without access to judicial review, we are no longer a republic but a monarchy. And a pretty oppressive one at that.

    "The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted."

    June 18, 2008 at 11:22 am |
  12. Annie Kate

    Maybe I'm missing the point but I thought after reading the Constitution regarding habeas corpus that habeas corpus could be suspended as defined in Article 1, Section 9 of the Constitution. This section states that habeas corpus "shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it".

    Lincoln suspended habeas corpus 3 times during the Civil War. There have been other times in our history that the writ has been suspended for a targeted group of people. For the detainees in Guantanamo who were captured in war trying to kill Americans, are not citizens, and would in all likelihood take up arms again against Americans should they go free, I do not see where the rights exercised in a civilian court would apply to these military prisoners – a military court has in the past taken care of these matters. With the Supreme Court ruling otherwise can habeas corpus be revoked for military detainees in Guantanamo? The Constitution it seems to me gives a very clear signal that it can.

    Annie Kate
    Birmingham AL

    June 18, 2008 at 9:25 am |
  13. Cindy

    I think that the Supreme Court was wrong in giving them the same rights as us under our laws. That to me is stupid since they are not citizens of the US. The next thing you know they will be giving illegal aliens who sneak in the same rights as us. So what's the use of anyone who is illegal going through the right steps to become a citizen?

    Just because we have these people detained in jail doesn't mean that they should be able to have the same rights as us. We should go by the laws that the world go by not our own.

    Cindy...Ga.

    June 18, 2008 at 8:29 am |