So if there's a Constitutional right to habeas corpus, it's smooth sailing for the Gitmo detainees, is it not? Well, no . . . there are still two questions to be answered. As we stated last week, this is where the disagreement between the justices lies. This week, we plan to explore each of these questions.
The first question: Does the Constitutional right to Habeas Corpus extend to Guantanamo Bay? As far as legal questions go, this is a pretty narrow issue - but it takes up the largest part of Kennedy's majority opinion.
We'll spare you the details - it's an exhaustive discussion of several hundred years of cases discussing the reach of the writ. Kennedy's opinion concludes that there is no simple, formal test to determine how far the writ goes; instead, he lists a number of factors: the status of the petioners, the practical difficulties in granting the writ, etc. - and determines after evaluating these facts that the writ extends to the Gitmo detainees.
In our view, Kennedy makes this question a lot harder than it needs to be. Everyone seems to agree that the great writ extends at least to those areas where the United States is "sovereign." Kennedy, however, concedes in his opinion that the United States is not "technically" sovereign over Guantanamo Bay - which necessitates his much more complicated analysis. But why concede this? Technically speaking, the United States has been leasing Gitmo from Cuba for over 100 years. But Cuba has absolutely no say over what happens there - the treaty gives the United States "complete jurisidiction and control" over the bay. (Thanks to Wikipedia). Indeed, for the past forty years or so, Cuba has made it very clear that they don't want us there! (they don't cash the rent checks, although you'd think they'd come in handy). As far as we know, the USA has no plans to ever end their "lease" in Gitmo.
Incidentally, no one lives in Guantanamo Bay other than the military personnel at the American base.
In short, Cuba's techinical "sovereignty" over Guantanamo Bay doesn't amount to a hill of beans. The law of the USA reigns supreme at Gitmo just as thoroughly as it does in Puerto Rico or New Jersey. Why not just call a spade a spade and say that the USA - at least for purposes of the reach of habeas corpus - is "sovereign" over Gitmo?
We don't know the answer, but we'd hazard a guess. Kennedy and the other members of the majority generally prefer to avoid resolving cases by setting or continuing formal hard-and-fast rules. This is a major, and continuing, point of contention between them and Judge Scalia, who has never seen an inflexible rule that he didn't like. Judges who adopt flexible rules are sometimes accused (often by Scalia) of being "activists" who seek to impse their personal principles in favor the unbending and neutral Rule of Law.
(Here at Hawks and Handsaws, we've never quite subscribed to this line of thinking. Our experience is that judges can just as easily apply their prejudices in applying formal rules of law. Moreover, formal rules, even if applied justly, will inevitably lead to unjust results in at least some cases. Finally, flexible rules allow for cases to be decided as narrowly as possible, which is perhaps the best check against judicial activism.)
Railing against flexible standards, nevertheless, is one of Scalia's favorite old saws. As we will see later, however, this is not the main argument he makes in his dissent. Rather, Scalia is greatly, greatly, concerned with Kennedy's broken promise to the government - his departure from a "settled promise" a case that until last week had occupied a seat with Brown v. Board of Education and Marbury v. Madison as fundamental American law. The case? You guessed it - the 1950 decision of Johnson v. Eisentrager
NEXT: Scalia's Dissent.