Do suspected Al Qaeda terrorists captured in Afghanistan and taken to the U.S.-operated prison at our naval base at Guantanamo Bay, Cuba, have a right guaranteed by the U.S. Constitution to contest their detention in the U.S. civilian courts? According to five members of the U.S. Supreme Court, who agreed with an opinion by Justice Anthony Kennedy in the case of Boumediene v. Bush, decided on June 12, the answer is yes. John McCain, the presumptive Republican nominee for president, declared that this was “one of the worst decisions in the history of this country.” Associate Justice Antonin Scalia, dissenting in the case (joined by Justices Thomas, Roberts, and Alito), declared that there was absolutely no legal authority to support the result reached by the majority and that the decision “will almost certainly cause more Americans to be killed.” Barack Obama, the presumptive nominee of the Democratic Party, praised the decision and declared it “a rejection of the Bush administration’s attempt to create a legal black hole at Guantanamo.” “This is an important step,” said Obama, “toward re-establishing our credibility as a nation committed to the rule of law.”
Who got it right? The closest constitutional-law precedent was Johnson v. Eisentrager (1950), in which the Supreme Court had held that German prisoners of war, captured in Germany and held in a U.S.-administered prison, could not invoke the protection of any rights they possessed in U.S. courts. The Bush administration argued that Johnson meant that the federal courts had no jurisdiction over prisoners captured outside the United States who were held outside this country. The accused Al Qaeda terrorists (or, more precisely, their American lawyers) argued that, since the United States exercises control over Guantanamo, it should be treated as if it were in the United States, and no one contested that federal courts would have jurisdiction to decide the legality of custody of prisoners held in jails in the United States. For reasons that remain unclear even after reading Justice Kennedy’s 70-page decision, the majority bought the plaintiffs’ argument.
Anthony Kennedy is the Supreme Court’s swing justice, an unpredictable jurisprude who seems to relish his position flitting back and forth between the Court’s four-person liberal (Stevens, Souter, Ginsburg, and Breyer) and conservative (Scalia, Thomas, Roberts, and Alito) blocs. Kennedy has notoriously borrowed principles from foreign jurisdictions, as, for example, in the recent Supreme Court decisions declaring it unconstitutional to carry out the death penalty on mentally handicapped defendants and to criminalize consensual acts of homosexual sodomy. He seems to believe that he is acting on a world-historical stage, and perhaps Barack Obama has sensed that. None of this augurs well for the kind of people that a President Obama might appoint to the Court.
On the other hand, there is something a tad troubling in the Bush administration’s position that decisions about who to incarcerate indefinitely on foreign soil are the exclusive domain of the executive branch, and, as Kennedy suggested, it was that “separation of powers” problem that called for the intervention of the courts, to keep the executive from running amok. Previous Supreme Court decisions had suggested, however, that Congress had the power to mandate military tribunals to try the question of lawful custody at Guantanamo, and that was precisely what Congress had done, in a manner that the four dissenting justices in Boumediene declared was perfectly proper and which prevented arbitrary action on the part of the military. In denouncing the President, Senator Obama conveniently left out the fact that the Bush administration was operating pursuant to congressional mandates.
Unless one believes that only the civilian courts of the United States can serve as the arbitrator of the conduct of our Armed Forces during wartime, Justice Kennedy’s opinion is troubling. Until Boumediene, the Court was not as Supreme as it now is. Friends of the rule of law must now ask themselves whether the Constitution is safest in the hands of a shifting, lifetime tenured five-person majority of the United States Supreme Court or in the hands of the President and Congress—the political branches, which at least must submit themselves to periodic elections.