Two Takes: The Supreme Court Made a Mistake in 'Boumediene'

Glenn Sulmasy is a national security and human rights fellow at the John F. Kennedy School of Government at Harvard University and an associate professor of law at the U.S. Coast Guard Academy. The views expressed herein are his own.

The Supreme Court's 5-4 decision in Boumediene v. Bush last week justifiably sent shock waves through the legal community. The majority opinion, authored by the ever wandering Justice Anthony Kennedy, disregarded both centuries of precedent and the military deference doctrine and also intruded on what is clearly the province of the political branches. As a result of this case, Guantánamo Bay detainees now formally have more rights than do prisoners of war under the Geneva Conventions. To say the least, citizens, regardless of political affiliation or views of the status of Guantánamo, should be concerned about the ramifications of this decision.

Precedent. The Boumediene holding permits aliens to exercise constitutional rights within U.S. courts of law. This has never been the policy of the United States, nor has the court ever granted such rights to those detained outside of U.S. jurisdiction. Additionally, it should be noted that this is the first of the Supreme Court cases since the attacks of 9/11 that actually declares that the military commission process contains a constitutional violation. While many on both sides of the aisle believe that Guantánamo and the military commissions might be flawed as a matter of policy (and, some say, of law) and think it is in the best interests of the nation to close Guantánamo, this case actually goes further and will have greater impact than if the commissions themselves were found to violate the Constitution. Justice Kennedy went to lengths to limit the decision to only those detained at Gitmo now, but his decision clearly will be analogized by some to other military bases overseas (e.g. Afghanistan) where detainees are held. The practical effect of flooding an already overburdened federal court system is more than likely. These detainees will not only have access to federal district courthouses but will gain the rights of American citizens to challenge their cases within the United States. One can only imagine further unprecedented constitutional challenges, such as applying the Fourth Amendment and the Fifth Amendment to the detainees, arguing these provisions of the Constitution apply to those searched or captured on the field of battle. This is not a stretch but a frightening, arguably unintended consequence of the decision.

Military deference. Boumediene has removed the military from the habeas corpus process altogether. Few will doubt we are a nation at war, and the military is detaining and adjudicating, through the military commissions, those unlawful combatants accused of war crimes. Under the holding, however, only civilian federal judges (without any opportunity for the military to formally review or determine the status of those they detain) within the district courts will decide whether or not to issue a writ of habeas. Ordinarily, courts refrain from interfering with ongoing military operations or policy decisions and have repeatedly refrained from intruding in this arena if at all possible. In Boumediene, the Supreme Court has inserted itself and removed the military altogether from the habeas process. Strangely, Justice John Paul Stevens had asserted in Hamdan v. Rumsfeld that the Uniform Code of Military Justice should be applied to these detainees. Boumediene disregards Hamdan and the code completely for determining lawfulness of detention. Additionally, the court has intruded in what the Founders clearly intended to be decisions best left to the political branches. With so much angst over executive power in the past few years, one hopes reasonable minds will recognize this overreach by the court. Clearly, Congress and the president are better able to make these decisions.

Prisoners of war. Ironically, the holding affords greater protections to the alleged unlawful belligerents than prisoners of war are entitled to under the Geneva Conventions. This absurdity should be shocking to the American citizenry. POWs are supposed to receive the "gold standard" of treatment, but it was never envisioned to permit such access to the domestic courts of the detaining country. The detainees, of course, are not even signatories to the tradition of the Geneva Conventions. But now nine unelected, life-tenured justices have determined that someone such as Khalid Shaikh Mohammed should be given access to our great courts of justice. If such a policy decision is to be made, it needs to be made by our elected representatives who have the voice of the people. The inaction on such concerns by the political branches should not be the catalyst for the Supreme Court to intervene—particularly when such decisions impact a nation at war.