Sunday, July 13, 2008

The Boumediene Decision (Part 2: THAT Dissent)

There were two dissents. Chief Justice John Roberts wrote one. A civil, professional, temperate, appropriately judicial one. He explained his problems with the majority’s ruling that alien detainees at Guantanamo were entitled to habeas corpus. In his view, the Court had never before reached such a conclusion under analogous facts and, in any event, the review procedures in place under the Detainee Treatment Act of 2005 provided an adequate recourse for the detainees. One may not agree with Roberts’ dissent [and I don’t], but let’s be honest. Entirely respectable arguments; entirely respectably argued.
Then there’s Scalia’s opinion. Yeah, THAT dissent. A very different character than Roberts’. Beginning with his very first line. Never before, he protests, has the Court “confer[ed] a constitutional right to habeas corpus on alien enemies detained abroad.” [My emphasis.] Can he beg the questions more than he does? First, the very issue is whether, under the circumstances, the best reading of the Constitution is that it guarantees that right. If it does, then the majority would not exactly be “conferring” it. But Scalia WOULD be trying to violate it. Charging him with that, however, would be begging the very question at issue. Much like Scalia has little hesitation doing.
But much more egregious than that is his reference to “alien enemies.” Come on. Even the apparently—and not infrequently—hyperventilating Scalia knows that that’s the critical question at the heart of the case. It’s not the given. The question is about determining whether they really are enemies. Whether the government actually has any good reason for claiming so. Whether there really is any justification for calling them “enemy combatants” and then holding them indefinitely because of that official designation. But Scalia is evidently content to pass right over all that technical stuff. (BTW, six days after Boumediene was decided, the D.C. Circuit in Parhat v. Gates found absolutely no basis for the government’s labeling Parhat an “enemy combatant;” he had been detained at Guantanamo for six years. And the author of that court’s decision, Chief Judge David Sentelle, is an appointee of President Reagan!)
What is most egregious about Scalia’s opinion is the tirade that immediately follows his intro: his “description of the disastrous consequences” of the majority’s decision. “America is at war with radical Islamists.” [His words; my italics.] “The enemy [those with whom he’s sure all the Guantanamo detainees are allied] began by killing [us] abroad: Lebanon, 19…in Dhahran, 224…in Dar es Salaam and Nairobi, and 17 on the USS Cole.” “On September 11, 2001, the enemy [and, again, he’s certain every detainee is connected] brought the battle to American soil.” “Our Armed Forces are now in the field against the enemy [yes, he knows each detainee is a comrade], in Afghanistan and Iraq.” And the majority’s insistence that a detainee has a right to a habeas corpus hearing—merely to insure that there is some evidence that justifies the detention; that the government has some credible basis for treating the detained individual as an enemy—“will almost certainly cause more Americans to be killed.”
Killed as a result of a hearing? Certainly not if the hearing determines that there is reason for the detention and, thus, the detention continues. And what if the hearing shows that the government actually has no such reason? Does Scalia think that the person’s detention should continue anyway? So is Scalia’s point, why bother with a hearing! It’s just safer to continue detention, regardless of the evidence, information, facts—or lack thereof?
Indeed, this does seem to be Scalia’s very point. He proceeds with a parade of instances where released detainees “have returned to the battlefield.” Some “carrying on their atrocities.” One “murdered a United Nations engineer...another murdered an Afghan judge.” And it “was reported” that one “carried out a suicide bombing.” [I guess this is Scalia's Willie Horton argument.] But what does “their return to the kill,” as Scalia puts it, have to do with whether detainees should be afforded the most basic hearing? If it’s the “incredible difficulty of assessing” who should be detained, again Scalia's words, then is the answer to detain—and keep detained—anyone the government happens to suspect? Whether for good reason, bad reason, or no reason at all? And therefore, not even to bother determining the reason or whether there is one?
Scalia’s dissent is more fitting for AM radio than for the Supreme Court’s reports. His language and “argument” is more becoming a high decibel, low brow talk show host than a justice on our highest court.
[For earlier commentary on Boumediene, see the the June 14 posting on New York Court Watcher entitled "The Boumediene Decision: 5 to 4 ??"]