Who's Afraid of Boumediene?
Jul-2-08 03:36 pm
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.
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)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:
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.
About the editor:
Commentary and analysis at the intersection of international law and politics.
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