Who are we more afraid of: enemy combatants or federal courts?

The law, lawyers, and the court.
June 12 2008 7:06 PM

The Enemy Within

Who are we more afraid of: enemy combatants or federal courts?

Illustration by Robert Neubecker. Click image to expand.

The Supreme Court's decision Thursday in Boumediene v. Bush and Al Odah v. United States is—as all the big enemy-combatant cases have been—both enormously important and relatively insignificant. This is, after all, the third stinging setback and blistering rebuke the court has handed the Bush administration with respect to prisoner rights at Guantanamo. Yet you may have noticed that all of these setbacks and rebukes have mostly meant more hot days in orange jumpsuits, more solitary confinement, and ever more plus ça change for the detainees there. At his pretrial hearing in April, one of the detainees "lucky" enough to actually face a trial, Salim Hamdan, pointed out to the presiding judge that winning his own appeal at the Supreme Court in 2006 got him precisely nothing.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

"You won. Your name is all over the law books," the military judge, Navy Capt. Keith Allred, told Hamdan that day, in an effort to persuade him that the system isn't rigged. "But the government changed the law to its advantage," Hamdan replied. Certainly the detainees at Guantanamo who don't face charges were granted some substantive constitutional rights today (although whether Hamdan himself will benefit remains to be seen). But it's a mistake to see this ruling for more than it is.


The Supreme Court, by a 5-4 margin, determined that neither the president, nor the president plus Congress, could strip detainees at Guantanamo of the ancient right to habeas corpus via the 2006 Military Commissions Act (PDF). This is pretty legal and technical, and the concrete ramifications are still baffling to just about everyone. Judging by the tone of Justice Antonin Scalia's dissent, however, you'd think that Justice Anthony Kennedy and his colleagues in the majority not only released Hamdan and his buddies from their imprisonment at Guantanamo, but also armed them with a rocket launcher and paid their collective train fare to Philadelphia. "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," Scalia wrote. He concluded his dissent with this warning: "The Nation will live to regret what the Court has done today."

Scalia points to the 30 detainees released from Guantanamo—by an order of the Bush administration, not a court, it should be noted—who have allegedly "returned to the battlefield." One detonated a suicide bomb in Iraq in May. Scalia notes that this "return to the kill" happened even after "the military had concluded they were not enemy combatants" (italics his). So you see, even those who were deemed innocent at Guantanamo are actually guilty in Scalia's mind. And whether or not they ever get to go home, the mere act of providing them with civilian court oversight will surely endanger yet more American lives. For this proposition, Scalia cites the trial of Omar Abdel Rahman in federal court in 1995, in which the names of 200 unindicted conspirators were leaked to Osama Bin Laden. Just to recap, then, everyone at Guantanamo is guilty, and the mere act of trying them will result in more American deaths. This raises the question of what Scalia would do with these prisoners, many of whom have been held for six years without charges. If they can't reasonably be tried or released, it must be a great comfort to believe that they are all killers and terrorists, and no further proof is needed.

The claim that the majority handed Khalid Sheikh Mohammed and the others at Guantanamo the keys to the cells is absurd on its face. As Justice Kennedy is careful to point out in his majority opinion, the court is not ordering the release of any detainees; it is restoring their fundamental right to a habeas proceeding before a neutral fact-finder. The court did not get to the question of whether the president has authority to detain these petitioners. Nor did it actually grant anyone a writ. The majority did not strike down the MCA or find the military trials the Bush administration established to be unconstitutional. The court merely said that the petitioners are entitled to some reasonable approximation of a habeas corpus proceeding, and that the jumped-up pretrial hearings known as Combatant Status Review Tribunals just don't substitute. Chief Justice John Roberts may insist that these tribunals represent everything a prisoner could ever wish for in the way of due process rights. But Justice Kennedy points out that the detainees' lack of a real lawyer and their inability to rebut the charges against them make for a process that is, by definition, "closed and accusatorial" and thus open to "considerable risk of error." (Not to mention that if a CSRT finds that you're NOT an enemy combatant, they can just order a do-over!) Such error may result in a lifetime of detention. The majority isn't persuaded the risk is worth it. Wrote Kennedy: "Given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant too ignore."



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