To be fair, Scalia does discuss in some detail his interpretation of Eisentrager (he thinks the controlling the majority is looking at the wrong controlling language). But in Scalia's opinion, there can be no room for reasonable disagreement about the interpretation of this case. "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.
How silly is this statement? Even the government - even John "Rubber-Stamp" Yoo, thought this issue came down to the "weight of authority, " not some alleged "smoking gun" language in any particular case. In fact, even Chief Justice Roberts, who joined Scalia's dissent, felt the need to say this about the habeas corpus issue in his own dissent:
I regard the issue as a difficult one, primarily because of the unique and unusual jurisdictional status of Guantanamo Bay
So why is Scalia pretending otherwise? Obviously, because it sets up the second part of his argument. By pretending that the non-availability of habeas corpus at Gitmo is the most obvious fact in the history of Supreme Court precedent, he can say this:
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. . . . Had the law been otherwise, the military surely would
not have transported prisoners there, but would have kept them in Afghanistan,
transferred them to another of our foreign military bases, or turned them over
to allies for detention.
Scalia just loves to talk about how dumb judges are, compared the great thinkers in the executive and legislative branch (here, for example, he opines that the court has no "competence" to "second-guess" the political branches - "the Court blunders in nonetheless") In the cited passage, however, Scalia demonstrates his own vast knowledge of foreign policy decisionmaking, concluding that the USA "surely would not" have transported prisoners to Gitmo if there was any doubt about the availability of habeas. Of course, no citation is provided.
Let's be frank - Scalia has no idea what the USA "surely" would have done with the detainees under a differing legal landscape (neither do we). The mere fact that the USA sought a legal opinion about the availability of habeas at Gitmo does not mean that they based their decision on their analysis. (Indeed, we've always suspected that the purpose of memos from people like John Yoo was to provide justification for decisions the President had already made.)
We're no less qualified to offer an opinion about what the USA might have done with the detainees had Eisentrager not been decided than Scalia is, so here goes: In our view, it is unlikely that the USA would have kept them in Afganistan, sent them to another base, or handed them over to our allies. The whole point of the Gitmo detention was to give the executive branch unbridled control over the detainees. The other options listed above would present serious security and political obstacles to that control. In our view, the Bush adminstration - as with so many other decisions made during the war on terror - was willing to act first and deal with the legal consequences later.
Indeed, we feel that the executive branch - and not the court - is the party acting in bad faith in this case. Gitmo is obviously within the total control of the United States. Yet throughout the detainee lawsuits, the government has nonetheless argued that this is irrelevant because Cuba is the sovereign nation in control of that area. We feel that Kennedy and the majority give this somewhat specious argument more respect than it deserves.
The Bush administration wanted to have its cake and eat it too - it wanted the prisoners to be completely at the mercy of the executive branch, without interference from the courts, from other countries, and (at least until the court forced them to concede otherwise in Hamdi) Congress.
Even George Will sees a problem with that.
PLAYING TO THE CHEAP SEATS:
Some more of Scalia's vast expertise in foreign policy on display:
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?" As we'll discuss later this week, when we get to Robert's dissent, this claim is quite unlikely. But why pass up an opportunity to accuse Kennedy of killing Americans?
NEXT: Roberts' dissent.