Strengthening Constitutional Self-Government

No Left Turns

Show me the body

Most conservative commentators tend to agree with Justices Scalia and Roberts that the Court majority was inventing law out of whole cloth in yesterday’s ruiling in Boumediene v. Bush, in which the Court struck down the Military Commissions Act (MCA) of 2006. They have much reason on their side. Whether habeas corpus rights ought to apply to non-citizens captured on the field of battle (or to others captured abroad by the military and intelligence agencies) is an interesting question.

Even so, it is worth recalling Richard Epstein’s strictures on the MCA.

Discussions - 9 Comments

I've yet to see a better summation of the issue than what Glenn Greenwald wrote:

"[H]ow and why would any American object to the mere requirement that our Government prove that someone is guilty before we imprison them indefinitely or execute them? That is all that yesterday's Supreme Court ruling required -- not that detainees be released, but that their guilt be proven in a fair proceeding. The fact that the Right is so enraged by this basic requirement vividly reveals the authoritarian impulses which define them."

As for the notion that Gitmo or our well-run prisons in Iraq and Afghanistan contain persons "captured on the field of battle," that is far from a uniformly accurate description. A lot of those prisoners were not snagged by American soldiers or even U.S.-aligned Iraqi soldiers/police, but by Iraqis eager or desperate to make some money. I'd bet that more Gitmo prisoners who have been released without charges are NOW open to terrorist attacks on Americans than they were BEFORE they were scooped up and dumped into that hole.

The operations at all the prisons have been immoral, incompetent and, more often, both.

Uhm ...


It is spelled out in our Constitution. Our Constitution applies to those born in the U.S. or naturalized as U.S. citizens.

How much clearer can the that document be?

Oh yeah, I, forgot, clarity is something that is seen as pedastrian, simple, and just down right wrong.

Sorry, I meant, pedestrian.

. . . for writing as if the detainees are simply and obviously no different from garden-variety domestic criminal suspects--an obvious bit of rhetorical base-stealing.

In fact, the government can and imprison people indefinitely (or "for the duration," in other words) without a finding of "guilt"--these people are called prisoners of war. Much of the dispute over the detainees revolves around whether they more resemble criminal defendants (the left's implicit model, which it tends to assume without defending, as Greenwald does) or war prisoners (in this case, arguably of an unusually dangerous kind). Greenwald would like to pretend that the former model (the one which holds that the detainees are just like criminal suspects with all the rights of access to the regular civilian courts, etc., that go with such a status) is the only possible one, but he provides us with no evidence or reasoning to support this conclusion.

"Greenwald's a sophist" (odd name!) - There are at least a couple of problems with what you wrote:

1. If you are so comfortable in generalizing all of those detained by the U.S. as "war prisoners (in this case, arguably of an unusually dangerous kind)" then it certainly must bother you that the presidential administration that has worked so hard to brand itself as the "Tough on Terrorists" administration has released the vast majority of those held at Gitmo (and elsewhere) without filing any charges against them whatsoever. Perhaps you don't care whether they were formally charged and then acquitted (that involves paperwork and bureaucracy and some semblance of adhering to "laws" and such, and you've determined they all must be guilty anyway), but how can you accept their RELEASE? In many cases they are now 100% free. If they're so "unusually dangerous" why were they released? And if they were determined (in a secret process that neither you or I can scrutinize) to be of no harm, then how can the U.S. justify their imprisonment for YEARS? Simply because they're not Americans and the U.S. can do whatever it wishes to non-Americans at any time? It might all be a shoulder-shrugger for conservatives who reside within the country behind such actions, and you can mutter something about "well, Scalia says..." but it's something to think about if you ever decide to step beyond U.S. borders. You are also sidestepping the issue that many, if not most, of the prisoners were not caught pointing a gun at Americans, building an IED or examining blueprints of the Texas Statehouse while sitting on a crate of plastic explosives. They were, in many cases, just turned in by creeps who were willing to call them Al Qaeda in order to make some fast money.

2. You dismiss the law enforcement model, but it seems that if the prisoners are indeed guilty of siding with the enemy and being "unusually dangerous" participants in the War on Terror, then it ought to be easy to demonstrate this and lock them up FOREVER, not just keep them in a prison for 5 years and release them. If we know what they've done and what they're up to, we can convict them and then put them away for life. It can and does work, and it also earns some respect for the U.S. and our way of doing things at the same time.

3. Remember that in Iraq now, and most likely other countries in the future, what the U.S. is doing can set an example. How we treat prisoners, detainees, "unlawful combatants" (or whatever the name is lately) today can end up biting us in the ass if and when we have Americans captured in foreign lands (whether they would be soldiers or not). True, not everyone would follow a humane model regardless of the circumstances, but if we keep shifting our nation's behavior to the lowest common denominator ("they chop off heads, so we'll chop off heads!"), we can only realistically expect brutal and inhuman treatment of our own people who end up as POWs or whatever.

If you read my post, you'll see that I don't say that all the detainees should simply be treated as POWs. Greenwald, approvingly quoted by you, made the irresponsibly sweeping--and quite patently bogus--claim that anyone whom the government imprisons must be treated as a full-fledged, run-of-the-mill criminal defendant, and I brought up a counterexample (i.e., the indefinite detention of POWs) to show what nonsense his claim is.

Of course I'm well aware that the Administration (and Congress, which recently passed the Military Commissions and Detainee Treatment acts [MCA and DTA] largely at the behest of the Supreme Court, and which the Court is now vaguely saying somehow aren't good enough) don't hew to a simple POW model. And I am also aware of the 30+ released detainees (that we know about) who have returned to the fight so far. To me this suggests not that we've been insufficiently lenient (which is Greenwald's claim--he wants MORE rights for these people) but rather that we've been too lenient already. At any rate, I never said that I "accept the release" of any of these people, so I don't know why you're posing this question to me. Maybe you should ask your pal Glenn Greenwald, since he wants to grant detainees more rights which in all likelihood would result in more of them being released.

Scalia made the point in his dissent that it's proven extremely difficult so far to determine which detainees represent a continuing threat. Pretending, as you do, that it's "easy" to know how to handle these people is fatuous.

Your last paragraph sets up a straw man. To begin with, let me point out for purposes of argument that even as regards POWs, certain standards and rules should be in force. Moreover, nowhere do I say that only a "lowest common denominator" of treatment should apply. FWIW, although I oppose granting full-scale habeas rights and other trappings of the civilian criminal-defendents' model to GWOT detainees, I also think that within the bounds of prudence some rules and procedural standards should apply, and that the MCA and DTA offer a defensible version of such a system. As Chief Justice Roberts pointed out in his dissent, due process doesn't always have to mean the absolute maximum of process in every instance without exception; rather it literally means the process that is due in a given case or class of cases, and this can ebb and flow somewhat depending on exigent circumstances. The two elected branches, at the Court's urging, made a prudential effort to figure out the best overall balance of such ebb and flow (liberty, rule-of-law, and due-process interests weighed prudentially against security interests) in this class of cases, and now Kennedy and the Court's loopy liberals have pulled the rug out from under the whole enterprise. Nor have they put any alternative system in place, apparently consigning it all to a future welter of litigation, with various courts now tasked to make ad-hoc national-security policy as various detainee lawyers forum-shop for the most swayable judges. But I understand: Rather than soberly surveying the damage that the Court may be doing, it's much easier and more fun to jump up and down and scream "conservatives are fascists!" a la Glenn Greenwald.

A final aside: I've always found the "we're setting an example" argument to be empirically weak. We shouldn't abuse prisoners, of course, but to claim that we should play fair because it will make our enemies do so (it won't) strikes me as an unconvincing rationale best left aside.

I like the balanced view taken here by law professor and Boumeddiene-decision critic Donald Kochan:

Greenwald is nothing but a hyperpartisan cheap-shot artist.

Apparently, judicial forum-shopping by detainee lawyers will be limited to the US District Court for DC:

Will the almost 200 detainee cases waiting to be heard by the District Court result in the revelation of any sensitive intelligence information, including some that could compromise sources and methods? Could the cost of keeping such information out of court proceedings be the release of dangerous detainees? Does the Supreme Court care about any of this?

"Scanlon doesn't get it" (I presume you're the same as "Greenwald's a sophist"), I have limited time, so I'll be very brief. First I'll just note that Greenwald is a constitutional lawyer, so his opinion is probably a bit more well-informed than the average pundit's on this particular case.

Second, it looks like you'll have to find some ad hominem to toss at George Will on this one, as well - and add him to your personal enemies list, perhaps.

Lastly, I never claimed that you accepted the release of most of the Gitmo detainees. (I asked the rhetorical question " can you accept their release?" which, by definition, doesn't require an answer) I DID say this, though: " certainly must bother you that the presidential administration that has worked so hard to brand itself as the 'Tough on Terrorists' administration has released the vast majority of those held ...". So, do read what others actually write, and be sure you've comprehended it accurately before you lash out at the perceived slights.

There's more, but I'm out of time.

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