In Mother Jones, Bradford Plumer responds to my recent article about the Supreme Court’s bad decision in Rasul, which permits any enemy combatant in the custody of the United States to seek habeas review in federal court. While apparently conceding my point that the decision will have deleterious effects to the war on terror, Mr. Plumer responds:
Nevertheless, this country has faced a number of pressing, dire challenges -- from the two World Wars to the threat of nuclear annihilation. We did not tear up the Bill of Rights then, and we should not do so now.
In this statement, Mr. Plumer shows that he is painfully ignorant of history and the law. The Supreme Court had in fact previously held that enemy combatants held on foreign soil could not seek U.S. habeas review. That case was decided in response to claims brought by WWII detainees. Oops, so much for Mr. Plumer’s knowledge of history. Second, the Rasul case dealt exclusively with interpretation of a statute, and expressly did not involve the Constitution, which means that despite Mr. Plumer’s rhetorical flourish, the Bill of Rights was not even involved. So much for his knowledge of the law.
I wish Plumer has said that the Court has made some egregious decisions during wartime (internment cases, Quirin) that are an assault on our constitutional principles, and should not continue to do so now. At any rate, listening to the oral arguments in Rasul, I hardly got the impression that constitutional principles were not involved, despite the fact that statutory interpretation was central to the case. Plumer’s language may be sloppy, but he’s attuned to the seriousness of the question in a way that is appropriate, I think.
Plumer missed the point that the core issue is that federal courts have limited jurisdiction. It is possible to disagree with the Executive’s detainment policy and still recognize that the courts are not statutorily or constitutionally empowered to address the questions. Not all questions are appropriate for the courts. And as usual, when the court attempts to make policy, it creates a precedent which is far broader than the present controversy. If you want the courts to be able to hear the case, then Congress could have easily granted them that authority by modifying the habeas statute, or by creating a special district court to hear the claims from Gitmo, which Congress is empowered to do. Instead, the courts made a huge power grab, and disregarded a key constitutional principle: that being that federal courts are tribunals of limited jurisdiction.