Thoughts on Boumediene

I finally got a chance to read the Court's opinion in Boumediene this evening, and what's remarkable to me is how completely predictable the ruling is. I don't mean that as an insult to the majority. They're clearly right on the law. What I mean is that I find it remarkable that the Bush administration ever thought this was a fight it could win. Did they really think the Court was going to hold that the Suspension Clause doesn't apply to Guantanamo Bay, that the government can set up an off-shore legal blackhole where constitutional protections don't exist? Not only would such a ruling lead to a number of troubling consequences, but the question was, for all intents and purposes, already settled by the Court in Rasul v. Bush. And if you assume that the Suspension Clause does apply (which was the only reasonable assumption under the circumstances), all the Administration was left with was an (incredibly weak) argument that the procedures afforded to Guantanamo detainees are an "adequate and effective substitute" for habeas corpus, a proposition which I doubt even the most ardent Administration defenders actually believe.

In other words, the administration should have seen this decision coming from a mile away. I thought it was pretty obvious last year, just from reading the briefs, that the Court would rule this way, and I don't even follow the Court that closely. What this decision reveals, yet again, is the immense arrogance and short-sidedness of the Bush Administration's legal approach to terrorism-related issues. Rather than thinking through the constitutional issues presented by their plans and trying to anticipate how the Courts are likely to react to them, this Administration just marches forward, ever defiantly, and hopes that it can somehow avoid the inevitable judicial reckoning. But that reckoning always seems to come, and then they're forced to go back to square one.

For what it's worth, I suspect that the most enduring and oft-quoted lines from the opinion will be these from Justice Kennedy:

Security subsists, too, in fidelity to freedom's first principles. Chief amongst these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.

. . . Within the Constitution's separation of powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person.

And this passage in the final paragraph can only be interpreted as a direct warning to both the Bush administration and its feckless Democratic enablers in Congress:

Because our Nation's past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.

Translation: "We're sick and tired of being the only ones who take our Constitutional obligations seriously. If you don't start genuinely making an effort to fit your terrorism policies within our larger constitutional framework, we're going to have to issue a bunch of rulings that you won't like."

I think the full extent of the Bush Administration's overreach on these issues is starting to become apparent. This is an area--defining the limits of war powers--where the Supreme Court would prefer not to tread. But because the Bush Administration has been so aggressive and unreasonable in its assertions of power, and because Congress has been so unwilling to stand up to the Administration and exert its own authority, the Court has been forced to issue a series of rulings rebuking the Administration (and in this case Congress as well). None of that had to happen.

On a final, somewhat tangential note, there's something about the coverage of decisions like this that really annoys me. Take for example, this passage from the Washington Post's lead story:

By a 5 to 4 vote that brought strongly worded and remorseful dissents from the court's conservative justices, the majority held that an alternative procedure designed by the administration and Congress was inadequate to insure that the detainees, some of whom have been imprisoned for six years without a hearing, receive their day in court.

It bothers me when the dissenters are referred to as the "conservative justices." Yes, Roberts, Alito, Scalia, and Thomas are conservative. But so is Kennedy (he was part of the majority in Bush v. Gore for crying out loud). And Souter and Stevens were both appointed by Republicans. Even Ginsburg and Breyer--the only two members of the Court appointed by a Democratic president--were considered relatively moderate justices when they were selected to join the Court. The reality is that there are no real liberals on the Court any more. There are no Brennans or Marshalls. The Court is, on the whole, much more conservative than it once was. When the Court splits 5-4, it's because the really conservative justices disagree with the slightly less conservative ones and the moderates. And, therefore, when this Court repeatedly rebukes the Bush administration on issues of war powers, it's not because the liberals on the Court are sticking it to the Republicans in the political branches. Rather, it's because this administration has gone too far for even this very conservative Court to tolerate.