After Abu Ghraib, a whole bunch of fits and starts with military commissions, not to mention too loudly the disastrously wrong-headed, deadly, and costly occupation of Iraq, Boumediene will make perfect sense to most of the world that will be mercifully saved from reading the opinion.
The decision in Boumediene will no doubt be heralded as a victory for civil liberty and a further rejection of the foreign policy, including the conduct of the “war on terror,” (if you believe there is such a war) of George W. Bush. The court, of course, did not repudiate either the president or his foreign policy in so many words, but that’s what the opinion effectively does — that, and express the view that since we’re not sure we’re at war, holding people without formal charge or trial who may or may not be associated with the war we’re not sure we’re fighting for more than six years is not good.
Spurning the president’s foreign policy is now commonplace. It is being done every day in offices, schools, and homes across the country; there’s no reason the court can’t get into the act, too. So, despite its soaring rhetoric that “security subsists in fidelity to freedom’s first principles,” the opinion might be summarized as: Our security was breached on 9/11; we are unsure of the scope of the continuing threat, but we’re feeling safe now. Because that is the case, Guantanamo will be treated as functionally part of the United States, and alien detainees who are within it will be given access to the federal district courts by means of the writ of habeas corpus. It is just not proper to keep noncitizens in custody for six years with no regular, Article III judicial determination that we caught the real enemy.
Putting aside the disregard of precedent, the fact that the history of extending the writ beyond sovereign territory was at best a draw, and that once again the high court left it up to the district courts to figure out what now, it’s a fine opinion. It is too facile to say the only losers are the detainees who have the writ but no real certainty that it means much of anything in particular. I bet more than a few petitions for release will be forthcoming with or without great specification of procedure. The chief justice’s dissent admirably illustrates the empty suit character of the majority. I’m not prepared to join Justice Scalia’s anticipation of military doom, though this much is true: The opinion disregards the wisdom of Justice Jackson, not in leaving an opinion lying around like a “loaded weapon” but by discharging and leaving a mess of anything that used to make sense in the jurisprudence of warfare and foreign affairs.
Next time, issue a press release. They are shorter and easier to read.
