Tuesday, June 17, 2008

Boumediene Part III

Here is the key passage of Judge Scalia's dissent:

The game of bait-and-switch that today's opinion plays upon the Nation's
Commander in Chief will make the war harder on us. It will almost
certainly cause more Americans to be killed
. That consequence would be
tolerable if necessary to preserve a time-honored legal principle vital to our
constitutional Republic. But it is this Court's blatant abandonment of such a
principle that produces the decision today. The President relied on our
settled precedent
in Johnson v. Eisentrager, 339
U. S. 763
(1950), when he established the prison at Guantanamo Bay for
enemy aliens. Citing that case, the President's Office of Legal Counsel advised
him "that the great weight of legal authority indicates that a federal district
court could not properly exercise habeas jurisdiction over an alien detained at
[Guantanamo Bay]." Memorandum from Patrick F. Philbin and John C. Yoo, Deputy
Assistant Attorneys General, Office of Legal Counsel, to William J. Haynes II,
General Counsel, Dept. of Defense (Dec. 28, 2001). Had the law been
otherwise, the military surely would not have transported prisoners
, but would have kept them in Afghanistan, transferred them to
another of our foreign military bases, or turned them over to allies for
detention. Those other facilities might well have been worse for the detainees

Scalia's dissent raises the same question much of his writing does - is he really this dumb, or is he just faking it? Here at Hawks and Handsaws, we've never been of the opinion that Scalia is the Great Genius as so many commentators (of all political persuations) insist. That said, we assume he's a pretty smart guy. In fact, we even agree with him from time to time. In this instance, though, we have to conclude that he's taking his readers for a ride.

Scalia wants us to believe that the Court has played a cruel trick on the poor unsuspecting government. First, it decided a case (58 years ago) in which in laid down a clear and uncontrovertable principle that established beyond any doubt that courts had no jurisdiction in Guantanamo Bay. The President, relying in good faith on this canon of law, moved the prisoners to Gitmo (he never would have if there were any doubt about this). But then the cruel trick! The Supreme Court reverses its 58 year-old case, declaring that it does have jurisdiction over the detainees claims. The real losers, of course, are ordinary Americans - who "almost certainly" will be killed in greater numbers because of the decision.

Let's put aside the oddness of Scalia making a stare decisis argument (for our laymen readers, stare decisis is a principle that cases previously decided should generally be followed. Scalia, in almost every other context, has no use for this principle. This is why he opines, at every possible opportunity, that Roe v. Wade should be overturned). Does this argument make sense?

First, what is Johnson v. Eisenstrager actually about? Eisenstrager was a lawsuit brought by a group of German POWs who were being held in Landsberg prison, in (temporarily) occupied Germany after WWII. No one disputed that the German prisoners were captured enemy soldiers. In addition to that, these prisoners had already been convicted by military tribunals of violating the laws of war.

One can think of many good reasons why a court in the United States should not get involved in a dispute involving admitted enemy combatants in a temporarily occupied terrortory (although three judges dissented in Eisentrager). At the same time, there are number of differences between the detainees in Eisentrager and those in Gitmo. We'll defer to Kennedy's opinion for the full analysis, noting only that (a) many of the Gitmo detainees deny that they are actually enemy combatants; (b) they have not been provided anything near the process that the German POWs received from the military tribunals; and (c) the prisoners were held in a foreign country that the USA was only temporarily occupying. Indeed, Eisentrager discusses these factors in some detail - there is, for example. an entire section discussing the legality and adaquecy of the military tribunals the prisoners received.

In short, it's hard to see how the facts or the result in Eisentrager dictates the outcome of the Gitmo case. Scalia doesn't seriously contest this point. Instead, he points to the language in the opinion that he likes:

"But, in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act." Id., at 770-771.

. . .

Eisentrager thus held--held beyond any doubt--that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign.

Like John Belushi in Animal House, Scalia's on a roll. One would think Scalia would be a bit more careful about the relevant language is making such a broad statement. After all, the cited portion of Eisentrager says nothing about "sovereignty" - it speaks of "territorial jurisdiction." (Scalia assumes they mean the same thing - but they may not).

And as we stated yesterday, our own view is that Gitmo is within the "soveriegnty" and/or the territorial jurisdiction of the USA in every meaningful sense.

But put that aside - since when the h*ll is dicta (language unnecesary to reach the result of a case) in a 58-year old case afforded the status of law brought down from Mt. Sinai by Moses? Everyone knows that the Supreme Court - and in particular, the four judges who signed Scalia's dissent - ignores dicta all of the time. (Just last year, for example, Chief Roberts danced around volumes of unfavorable dicta in his decision in Parents Involved in Community Schools v. Seattle School District ).

Scalia pretends not to understand what everyone knows. Everyone, by the way, includes the lawyers at the executive branch. Remember that memo cited by Scalia? At most, it could conclude that "the great weight of authority" supported the proposition that Eisentrager supposedly held "beyond any doubt." This memo, by the way, was co-authored by that noted legal scholar John Yoo, who never seemed to have trouble finding Constitutional authorization for whatever the president wanted to do.

NEXT: We discuss the "bad faith" involved in Boumediene. Hint: we're not talking about the majority opinion.

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