The Supreme Court of the United States recently reached a decision in Boumediene v. Bush that we will all come to regret. The Court ruled that detainees held at Guantanamo Bay, and any enemy combatants that the U.S. captures, have the right to a habeas corpus appeal in U.S. civil courts. This decision has been praised as a victory for civil liberties and as a rebuke of the Bush administration’s handling of the war on terror. But this decision is rather an example of activist Justices who see themselves as political players rather than as guardians of the Constitution.
In a perverted view of checks and balances, the Supreme Court has blatantly disregarded the other two branches of the federal government. The Detainee Treatment Act of 2005 (Division A, Title X in Dept. of Defense Appropriations Act of 2006) denies enemy combatants the right to appeal their detention in a U.S. civil court. Instead, the right of an enemy combatant to appeal imprisonment takes place in a Combatant Status Review Tribunal (CSRT), established by the Military Commissions Act of 2006. Furthermore, the petitioner has the right to appeal a CSRT decision in a D.C. Circuit Court. These two measures (DTA and CSRT) adopted by both the executive and legislative branches, provide a more than sufficient substitute for habeas corpus. As Justice Scalia writes in his dissent, “The Court…must leave undisturbed the considered judgment of the coequal branches.”
The Supreme Court in all its infinite wisdom, however, has decided that the aforementioned branches must bow before the Court. It is worth noting, as Chief Justice Roberts states in his dissent, that not a single CSRT decision has been appealed. It is therefore, “grossly premature to pronounce on the detainees’ right to habeas without first assessing...the remedies the DTA system provides.” In essence, the Court ruled on a measure that has yet to be challenged and proven inadequate or unjust.
By granting habeas corpus to alien enemy combatants, not only does the Court turn its back on precedent, but it also grants alleged terrorists legal rights that the U.S. does not even afford to uniformed prisoners of war. In Johnson v. Eistenrager, 21 German POWs who were held by U.S. forces in the American Zone of occupied post-WWII Germany petitioned their detentions and sought a writ of habeas corpus. In Johnson v. Eistenrager the Court found, “no instance where a court, in this or any other country where the writ is known, has issued it [writ of habeas corpus] on behalf of an alien enemy,” who is not within the nation’s sovereign territory. As Justice Scalia notes, Guantanamo Bay is certainly not within the sovereign U.S. and thus prisoners of war have historically been tried by military tribunal without the right to challenge their detention via writ of habeas corpus. Now, the Court wishes to completely overturn years of precedents by granting writs of habeas corpus to alleged alien terrorists. As for the allegations of CSRT’s injustices, the CSRT provides detainees with legal representation, “one of several ways in which the CSRT procedures are more generous than those provided prisoners of war,” as Chief Justice Roberts points out. The Court provides no evidence of CSRT inadequacies and thus no reason to extend habeas corpus to alien detainees.
Many who have championed the Court’s decision like to paint a picture of a corrupt Bush administration that wages the war on terror without regards for the Constitution. While the administration has committed questionable acts, it is now the Supreme Court that should be questioned. According to Justice Scalia’s dissent, at least 30 prisoners who have been released from Guantanamo Bay have returned to battle. One such released prisoner organized the kidnapping of two Chinese dam workers, and another former prisoner murdered a United Nations engineer. The list goes on. These prisoners were released by the military. Imagine what will happen when civilian courts determine the status of enemy combatants. Furthermore, the Court’s ruling is detainee friendly in that it requires the government to provide more evidence in order to fulfill its burden of proof. Not only do U.S. soldiers have to fight for their lives in Iraq, but now they must be CSI detectives.
The harsh reality we live in is that the U.S. is engaged in a war and this type of decision by the Supreme Court during wartime is unprecedented. The Supreme Court is the highest court in the land, but it is not the highest government branch in the land. Both the President and Congress have voiced their opinions on this issue as is evidenced by the Detainee Act of 2005 and the Military Commissions Act of 2006. These two branches purposely denied habeas corpus to alien enemy combatants. Yet, the Court chooses to disregard the wisdom of both branches. The Court’s decision jeopardizes both our security and our Constitution.