This was a close case, decided 5-4 by a liberal v. conservative split. The liberal majority (opinion by Justice Kennedy) decided that the 2005 Detainee Treatment Act (DTA) did not adequately protect the right to habeas corpus of detainees at Guantanamo Bay. The majority concluded that the limitation of habeas rights in that law was unconstitutional because, in the views of the Court, habeas protections can only be suspended by invoking the Constitution’s suspension provision, i.e. when the Commander in Chief declares a rebellion or invasion. The conservative dissenters, Chief Justice Roberts and Justices Alito, Scalia, and Thomas, rejected this argument in two separate dissenting opinions, one by the Chief Justice and one by Justice Scalia, in both of which the other conservative justices joined.
The Roberts dissent argued primarily that the DTA adequately protected whatever rights aliens detained as enemy combatants have. The right of habeas corpus is not an independent civil right in US law, according to the Chief Justice, but is first and foremost a “procedural right, a mechanism for contesting the legality of executive detention.” In other words, Roberts implies that it is not the exact formula of the writ of habeas corpus that is the protected civil right, but the intent or content of this writ, i.e. the test whether executive detention is legal. Thus, Roberts concludes that the DTA more than adequately provides for a protection of that essential right and that the discussion of habeas corpus should never even have been considered in this case.
Justice Scalia’s scathing and sarcastic dissent went into the specific question whether the Guantanamo detainees had the right of habeas corpus. He emphatically concludes that they do not because the detainees are held in Guantanamo Bay which is part of Cuba and not the United States. As alien detainees being held outside the sovereign territory of the United States they have no constitutional right to sue in civilian US court. Scalia also argued that the very reason President Bush decided to detain enemy combatants at the Guantanamo Bay facility was that he was advised by legal counsel that US civilian law does not extend to that facility.
As with any legal case, the question is an intricate one. Seen from a political point of view, I am not unsympathetic to the Court’s decision. The reason for this is that I do not agree with the ethical argument that enemy combatants “ought not to be be allowed to sue in civil court.” This seems to be at the bottom of Bush administration arguments, and Justice Scalia’s opinion strongly supports this notion. Hiding behind certain blank spots in the law because it is convenient to do so does not address the ethical question whether even enemy combatants ought not to have a certain minimum guarantee of due process. Scalia’s intricate argument regarding the sovereignty status of Guantanamo Bay is not only unconvincing, it is short-sighted and goal-oriented. He argues in effect that Guantanamo Bay is in no way part of US sovereign territory and that, ergo, the right to a writ of habeas corpus does not extend there, at least not to alien detainees. But his reasoning is somewhat tortured (pun intended) because he has to engage the majority’s argument that US sovereignty extends there at least de jure if not de facto. While this distinction, invented by the majority for this case, certainly is not extremely elegant, it does essentially describe the status of Guantanamo: US duties are imposed there by US agents (the US military and other federal agents) on the detainees and these US agents have to abide by executive directives. The majority’s conclusion that this implies US legal control of the area is not less than reasonable. Scalia’s dissent that there is no such term as de jure sovereignty and that its distinction from de facto sovereignty is contrived is unfair and wrong. His particular example that, in common law history, the English writ of habeas corpus was not issued in Scotland when the power of the English crown extended de facto to Scotland, is a legal non sequitur. After all, Scotland had and has its own law in a way not dissimilar to the way different US states have different and separate legal codes.
But this is mostly politics and not necessarily constitutionally sound reasoning. The Chief Justice’s dissent makes clear that even the alien detainees at Guantanamo Bay have a right to challenge their detention, but he deferred to the decision reached by both the executive and legislative branches in passing the DTA in 2005. This law, he argued not unpersuasively, protects the effective content of the detainees’ rights. Just because these rights are not exactly equal with civil habeas corpus rights that obtain for US citizens anywhere, and for legal resident aliens within the sovereign territory of the United States, this is no reason to declare the relevant provision in the DTA unconstitutional.
We must not fall into the trap of fixing this the quick way because the question is politically controversial. I have always disagreed with the Bush administration’s handling of the legal rights of Guantanamo detainees. I believe the limitations imposed on them are unethical because they contradict the very principles undergirding American law and democracy. Even enemy combatants should have some rights. The administration has claimed to agree with this position but the limitations they have imposed on these rights, as gleaned from the legal arguments employed in the various challenges in federal court to the detainees’ treatment, appear to exceed the standards of reasonableness.
On the other hand, the public at large has no right whatsoever to know anything about the way these enemy combatants are processed as this would clearly violate the national security interests of the United States. And unfortunately, the public, in the guise of journalists, pressure groups, and politicians, have muddied the debate by offering conclusions on the matter when they have no understanding of the facts. This decision by the Court’s liberal majority is clearly driven to appease these ill-informed public opinions. Chief Justice Roberts’ warning that the majority’s decision will create a legal confusion that is in no-one’s interest, neither that of the government nor that of the detainees, is quite correct. As members of the judicial branch of government, the justices have no calling except to look at what the pertinent laws say and then declare that. If this analysis of the law finds that the Bush administration has not violated any law then, no matter the political or ethical quibbles one may have with administration policy, too bad. It is simply not up to the judiciary to correct this situation. Judges are nothing but glorified legal consultants, trained in giving expert opinions on the cumulative effect of legislative and executive action.
Thus, even though I am not unsympathetic to the position or even the arguments taken by the Kennedy majority, the conclusion of that majority cannot be construed as anything but liberal judicial activism. I do not agree with all the arguments propounded by the two dissents, but their overriding redeeming quality is that both the Chief Justice and Justice Scalia understand much better than the liberal majority the position Supreme Court justices as well as other federal judges have in a constitutional democracy.
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