Friday, June 20, 2008

Boumediene: Roberts' Dissent

We're reading The Brethren, Bob Woodward and Scott Armstrong's inside account of the Burger Court in the late 60's and early 70's. It's a bit gossipy for our tastes, but on the whole, we've found it very enlightening. Particularly interesting: The book reveals how difficult it can be to get nine (or even five) judges to sign a single opinion. Many compromises must be made. This bears keeping in mind as we discuss Kennedy's somewhat garbled opinion in Boumediene.

WHERE WE LEFT OFF: Kennedy rules that the Detainee Treatment Act is unconstitutional because it doesn't give the detainees enough rights to challenge their detention. But he assumes that the DTA guarantees many important rights - guarantees that don't seem to be in the statute! Then he says that DTA is deficient because it doesn't include the right to consider newly discovered evidence - a right that most habeas corpus petitioners don't generally have! Finally, he seems to sayt hat (despite his earlier assumption) that the DTA cannot be read to guarantee anything close to habeas corpus because that's not what Congress wanted.

Chief Justice Roberts has trouble making sense of this. After noting the rights guaranteed by the DTA, he writes:

Despite these guarantees, the Court finds the DTA system an inadequate habeas substitute, for one central reason: Detainees are unable to introduce at the appeal stage exculpatory evidence discovered after the conclusion of their CSRT proceedings.

. . .

If this is the most the Court can muster, the ice beneath its feet is thin indeed.

He also summarizes Kennedy's final argument.

In other words, any interpretation of the statute that would make it an adequate substitute for habeas must be rejected, because Congress could not possibly have intended to enact an adequate substitute for habeas. The Court could have saved itself a lot of trouble if it had simply announced this Catch-22 approach at the beginning rather than the end of its opinion.

Thus, the statement the beginning of the dissent:
How the detainees' claims will be decided now that the DTA is gone is anybody's
guess. But the habeas process the Court mandates will most likely end up looking a lot like the DTA system it replaces, as the district court judges shaping it will have to reconcile review of the prisoners' detention with the undoubted
need to protect the American people from the terrorist threat--precisely the
challenge Congress undertook in drafting the DTA. All that today's opinion has
done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary.

For reasons we'll discuss shortly, we don't agree with Roberts - but certainly these points are fair responses to the argument advanced by Kennedy. Before we go farther, however, let's go back to Scalia's dissent. Let's discuss the portion of his dissent that was mostly widely quoted.

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

"Almost certainly?" Scalia's argument must be that the decision will allow detainees significantly more rights, which will allow significantly more of them to be released, which will result in more Americans being killed.

But look at Roberts. He sings the praises of the DTA- "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." His whole point is that the system is so thorough that replacing it with habeas corpus will not accomplish anything. "[T]he habeas process the court mandates will most likely end up looking at lot like the DTA system it replaces."

If this is true, how could anyone be "almost certain" that more Americans would be killed? Remember that Scalia and Roberts signed each other's dissent.

Roberts and Scalia, as we're constantly told, are Great Legal Geniuses. This could not possibly be an oversight on their part, in such an important opinion. Instead, it seems "almost certain" that Scalia (and Roberts) don't really believe everything they put their names to.

OUR OWN VIEW: As we said, the quoted portions of Robert's dissent are fair responses to Kennedy's opinion. As with the issue we previously discussed, we feel that Kennedy is Making Things Harder Than They Need to Be. To our eyes, the text of the Detainee Treatment Act does not seem to guarantee any significant right to challenge unlawful detentions. Why not just say this? In defense of Kennedy, that might be what he's getting at near the end of the opinion, in the section that Roberts describes as the "Catch-22" Perhaps there were diverging opinions in the majority, and Kennedy just did his best to reconcile them.

NEXT: We aim to wrap up our discussion of Boumediene by discussing two other points from Robert's dissent. (preview: they don't hold as much water as the one discussed today). We still plan to cover Indiana v. Edwards. For now, read this analysis on Scotusblog.

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