Fear-Mongering, Activism, and the Guantanamo Cases

By Doug Kendall and Elizabeth Wydra

Conservatives love to decry result-oriented judging--except when they don't like the results compelled by the law.

In reacting to the Supreme Court's decision yesterday in Boumediene v. Bush, which held that Guantanamo detainees enjoy the protections of habeas corpus, President Bush responded that he "strongly agree[s] with those who dissented" because that "dissent was based upon their serious concerns about U.S. national security." Bush was echoing Justice Scalia, who began his overwrought opinion with war-on-terror body counts and bluntly stated that the Court's decision upholding habeas rights "will almost certainly cause more Americans to be killed."

Overlooked in this fear-mongering is the Constitution. The Constitution is what the Supreme Court must interpret, enforce, and remain faithful to--it is not the role of the Supreme Court to soldier in support of the war against terrorism. The Supreme Court's role is to ensure that the United States remains a Nation of laws, even in turbulent times, even in the face of grand-scale politics.

Conservatives have accused liberals for decades of abandoning the text and history of the Constitution in favor of their political agenda. But that is a good description of what Justice Scalia is advocating for in his dissenting opinion in Boumediene. Scalia tacitly acknowledges that his favored result is motivated by the "disastrous consequences" chronicled in the beginning of his opinion.

When he half-heartedly turns to supporting this result based on constitutional text and history at the end of his opinion, his arguments go nowhere. Scalia argues at length that when the Constitution was ratified in 1789, habeas corpus did not apply outside the territory of the United States. At the end of this argument, however, Scalia concedes that even he believes habeas does apply extraterritorially: just not to "alien enemies." But Scalia cannot point to a shred of support in text of the Constitution or the history of the common law of habeas corpus for the proposition that habeas protects citizens abroad, but not aliens detained by American forces.

Scalia also tries to argue that the Constitution's prohibition against suspending the right to habeas corpus acts just as much to stop the courts from extending the writ of habeas corpus as it does to prevent the political branches from withdrawing the writ. This is silly: the Suspension Clause limits Congressional power and the Founders plainly understood habeas corpus as an essential check for the judiciary to use to combat tyranny by the Executive Branch.

So who exactly are the "activist judges" in all of this? Not Justice Kennedy and the four other justices who joined his majority opinion (Kennedy and 2 of the other 4 justicesin the majority were nominated by Republican presidents). Kennedy crafted a nuanced, scholarly analysis of the text, history and structure of the Constitution to find that Guantanamo detainees have the right to seek habeas corpus relief. This is a courageous opinion, but certainly not an activist one. Indeed, it could be called judicial activism not to enforce the check-and-balances the Founders established in the Constitution when faced with unconstitutional Executive encroachments.

Standing up for the Constitution against political will is a fulfillment of the Justices'--and each public servant's--oath to uphold the Constitution. Despite all the right-wing bluster about fidelity to constitutional text and history, the detainee cases find the conservative Justices too willing to capitulate to Bush Administration policies and fear mongering. It's long past time to rethink that "activist judge" label.

Doug Kendall is President of Constitutional Accountability Center, Elizabeth Wydra is the Center's Chief Counsel.

Comments

[arcticredriver]

Benjamin Franklin said "Those who would sacrifice liberty for security deserve neither."

Leaving the moral dimension aside, on a purely practical level Scalia couldn't be more wrong.

Guantanamo makes the public much less safe because the public is relying on decision makers reaching conclusions about how to allocate our counter-terrorism resources -- based on confessions and denunciations wrung from men through torture -- and those confessions and denunciations are completely worthless. They are worse than useless, they are extremely dangerous.

Priceless counter-terrorism resources have been squandered through the cruel Guantanamo charades, and the hysterical over-reactions to the "valuable intelligence" they produced.

Shame on Scalia. Shame.

[theantibush]

The prisoners at Guantanamo have the right of habeas corpus because they are detained as result of a police, not declared war, action.

Terrorism is a tactic, not a country.
Congress did not declare war because there is nothing to declare war on.

Terrorism is a law enforcement issue, much like illicit drug trafficking and other criminal activities.

To say we are at war with terrorism is nonsense, and open ended:
there is no definition of victory against a tactic.

Resolution is thus always at the horizon, at the vanishing point,
like chasing after the end of a rainbow.

McCain is...clearly incompetent, perhaps even insane.

[bgregs]

And if they were there due to an actual war then they would be called POWs and they would be subject to the Geneva Conventions.......

[oldpotsmuggler]

It's scary. This decision would once have beena given. For most of my life it would have been no worse than 8-1 or 7-2.

Now it's 5-4, and on a bad day Kennedy might just as easily have taken it the other way.

Yeah, it seems like disgruntled Dems going for McCain is just exactly what this country needs.

[bgregs]

Article I, section nine of the Constitution of the United States has an interesting clause:

"... The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it...."

This means to me that the ONLY two times in US history when habeas corpus was allowed to be suspended were during the Civil War, and the War of 1812. In the former, there was definitely an insurrection, and in the latter there was most definitely an invasion.

Neither one of these apply here. We are not being invaded, nor is there an insurrection (though I wish that more of my fellow citizens would rise up against this abuse of power!). Therefore habeas corpus applies, NO MATTER WHAT THE PRESIDENT OR CONGRESS SAY!!!!

The fact that this was a 5-4 decision only underscores how incredibly far the rightwingnuts have come from being conservatives!

[bethinCary]

Bush?Cheney have already tried to stack the deck to take the judicial Branch out of their war-plans..
They made up terminology like "enemy combatant" over prisoner--which denotes the person picked up by the US is "the enemy" who runs the risk of "being combatant"--to prejudge-judge-incarcerate in one fell-swoop with prejudiced labeling/terminology...

It's been done with other phrase "war on terror" (wtf does that mean really?)
"Patriot Act--which really serves to do the opposite of patriotism by taking away citizens rights..
"permanent bases -Pres. has already decided they're permanent sheerly by making up a new word--over a "bases" and whether the US has a right to be building them there..(or 56 for that matter)
so it deflects the argument on "if" to "how long" or even "how much"-again--by the label--he's instilled that he thinks it's a nonsequiter--and that he has the power alone to make such decisions..
Catching on yet???.

[laocoon]

Much of what Scalia says is silly and embarrassing. I could not believe his "analysis" of the prohibition on cruel and unusual punishment on 60 Minutes, Apparently the authors of the bill of rights only intended to protect people who had already been convicted of something and intended no protection to people the government simply wanted to pry information from. Little reason to ever prosecute anyone if the government has more ability to torture or coerce those who are still presumed innocent. Most right wingers who complain about activist judges have one complaint only -- the result was not what I want. Turns the idea and meaning around 180 degrees. the right has its own vocabulary and words have their own special meaning often the opposite of what they really mean. Wake up. One more of these right wing judges and the constitution will mean the opposite of what it says.