Anthony Kennedy-- A Justice to Fear?

Apparently David Rivkin and Lee Casey. They have an op-ed in today's Wall Street Journal in which they make the following assertion:

The Supreme Court has now taken a central role in deciding who may be captured and detained as an enemy combatant , ruling that detainees, akin to criminal defendants, are constitutionally entitled to challenge their confinement through "habeas corpus" proceedings in federal district courts. The court's reasoning extends far beyond how "unlawful enemy combatants" like the Guantanamo detainees are treated. Legitimate prisoners of war in a future conventional conflict – who now receive less legal process than the detainees at Guantanamo – also can demand habeas proceedings. Thus, American forces, if they wish to be sufficiently certain of holding enemy prisoners anywhere in the world, must set about securing CSI-style evidence to satisfy the judges that their captives are indeed what they seem to be – enemies in arms against the United States.

Collecting this evidence on the battlefield will cost lives and impair combat effectiveness. Moreover, the need to litigate habeas proceedings, particularly when applied to a large body of prisoners, will impose great additional burdens on the U.S. military, which is already stretched thin by the demands of global operations. One example: Operations in Guantanamo had to be fundamentally recast to accommodate hundreds of detainee lawyers and their support personnel.

It is deplorable that American forces can no longer detain captured enemy combatants without a burdensome judicial process. But Congress cannot fix the problem by legislating new limits on detainee due-process "rights." Until the Supreme Court's balance changes and Boumediene is overruled, the armed forces will be driven to a tragic "catch and release" policy. The most senior enemy operatives, assuming enough evidence can be collected, will be tried for war crimes before military commissions. Others will be taken into custody, interrogated, and then transferred to the custody of allied governments – or even set free in the theater of action after they have been disarmed.

Just to reiterate: the Supreme Court did not rule that persons captured on the battlefield and held in an area outside the complete control of the United States would enjoy the right to petition for habeas. The ruling is limited to persons held in places exactly like Guantanamo. The Court  said nothing about persons held in detention centers elsewhere.  In fact, as a previous post indicated, the Court explicitly differentiated persons held in Guantanamo from those held in an allied-run prision in post-World War II Germany, as was the case in Johnson v. Eisentrager.  It is simply wrong to assert that "American forces can no longer detain captured enemy combatants without a burdensome judicial process." The Court did not rule that. In fact, the Court noted that practical concerns about "burdens" are appropriately considered when a court determines whether persons enjoy habeas. In Boumediene the Court explained:   

Practical considerations weighed heavily as well in Johnson v. Eisentrager, 339 U. S. 763 (1950), where the Court addressed whether habeas corpus jurisdiction ex­tended to enemy aliens who had been convicted of violat­ing the laws of war.  The prisoners were detained at Landsberg Prison in Germany during the Allied Powers’ postwar occupation.  The Court stressed the difficulties of ordering the Government to produce the prisoners in a habeas corpus proceeding. It “would require allocation of shipping space, guarding personnel, billeting and rations” and would damage the prestige of military commanders at a sensitive time.  Id., at 779.  In considering these factors the Court sought to balance the constraints of military occupation with constitutional necessities. Id., at 769– 779; see Rasul, 542 U. S., at 475–476 (discussing the factors relevant to Eisentrager’s constitutional holding); 542 U. S., at 486 (KENNEDY, J., concurring in judgment)
(same).

Later, the Court notes:

we conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process  through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inher­ent in resolving the prisoner’s entitlement to the writ.  (emphasis added)

In the case of Guantanamo-- an area under exclusive jurisdiction and control of the United States, where no war is taking place-- the Court ruled that there would be no significant practical burden. The Court explains the differences between the pratical considerations in Eisentrager and Guantanamo:

  
The situation in Eisentrager was far different, given the historical context and nature of the military’s mission in post-War Germany. When hostilities in the European Theater came to an end, the United States became responsible for an occupation zone encompassing over 57,000 square miles with a population of 18 million. See Letter from President Truman to Secretary of State Byrnes, (Nov. 28, 1945), in 8 Documents on American Foreign Relations 257 (R. Dennett & R. Turner eds. 1948); Pollock, A Territorial Pattern for the Military Occupation of Ger­many, 38 Am. Pol. Sci. Rev. 970, 975 (1944).  In addition to supervising massive reconstruction and aid efforts the American forces stationed in Germany faced potential security threats from a defeated enemy.  In retrospect the
post-War occupation may seem uneventful.  But at the time Eisentrager was decided, the Court was right to be concerned about judicial interference with the military’s efforts to contain “enemy elements, guerrilla fighters, and ‘were-wolves.’”  339 U. S., at 784.

Similar threats are not apparent here; nor does the Government argue that they are. The United States Naval Station at Guantanamo Bay consists of 45 square miles of land and water.  The base has been used, at vari­ous points, to house migrants and refugees temporarily. At present, however, other than the detainees themselves, the only long-term residents are American military per­sonnel, their families, and a small number of workers.  See History of Guantanamo Bay online at https://www.cnic. navy.mil/Guantanamo/AboutGTMO/gtmohistorygeneral/gtmohistgeneral.  The detainees have been deemed ene­mies of the United States.  At present, dangerous as they may be if released, they are contained in a secure prison facility located on an isolated and heavily fortified military base.  
 
There is no indication, furthermore, that adjudicating a habeas corpus petition would cause friction with the host government.  No Cuban court has jurisdiction over Ameri­can military personnel at Guantanamo or the enemy combatants detained there. While obligated to abide by the terms of the lease, the United States is, for all practi­cal purposes, answerable to no other sovereign for its acts
on the base. Were that not the case, or if the detention facility were located in an active theater of war, argu­ments that issuing the writ would be “impracticable or anomalous” would have more weight.  See Reid, 354 U. S., at 74 (Harlan, J., concurring in result).  Under the facts presented here, however, there are few practical barriers to the running of the writ. To the extent barriers arise, habeas corpus procedures likely can be modified to address them. (emphasis added)

To repeat: The "burdens" that Rivkin and Casey refer to are exactly the type of burdens that the Court believes should be taken into consideration when determining whether to allow for habeas.

The alarmism reflected in their op-ed serves no useful purpose. A careful reading of the case shows that the Court is fully cognizant of the conerns they raise.