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June 16, 2008

The End of the Nation-State?


"Upon reading the opinion in Boumediene v Bush, one must conclude that the majority knew where they wanted to go and simply had to figure out how to get there. "

Some time ago I wrote of the dangers of an increasingly imperial (and imperious) Supreme Court:

...they apparently believe the least accountable and only unelected branch should have more power than those selected by the People. But this is an interpretation not supported by both Hamilton and Madison, who clearly intended the Judiciary to be the weakest of the three branches:

But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.

- James Madison, Federalist 51

Arguments like O'Connor's and Ginsburg's rely on the ignorance of the average American, but more alarmingly they represent the growing tendency of the Court to view itself as a law unto itself and of various factions to use the Court to circumvent the will of our democratically elected representatives.

In recent years the Court has displayed a disturbing willingness to 'reason' itself into any number of ends-justify-the-means decisions which defy both logic and its own precedent. Justin Ku explains why Boumediene ought to disturb even the Court's liberal admirers, who notably were heard during the Roberts confirmation hearings to fairly genuflect whenever the word "precedent" (oft used as a euphemism for not overturning Roe v. Wade) was uttered. But in truth, if the Court has abandoned even its own sacred precedent is a womyn's sacred "right to choose" safe anymore? If women are betting on the Court's consistency, they might wish to think again:

Does it matter if the Court departs substantially from past precedent? Not to the many commentators (on this blog and elsewhere) who have hailed the decision. But even if one is happy with the result, one has to be worried about a judicial methodology that veers rather dramatically from precedent without admitting that it is doing so. Not only does this further undermine the legitimacy of the Court, but it makes it hard for future decisionmakers to know what is or is not legal? The Bush Administration and Congress can rightly complain that the Court has moved, and continues to move, the goalposts here.

It was totally reasonable for lawyers prior to Hamdan to believe that military commissions were statutorily authorized, the Geneva Conventions were not self-executing, and prior to Boumediene that the writ of habeas corpus and U.S. constitutional rights do not extend outside the territory of the United States to enemy aliens. Indeed, it would have been irresponsible for an attorney advising the President NOT to point out that the legal authority existed.

What now? The unacknowledged departure from precedent represented by Hamdan and Boumediene leave us in uncharted territory. A future decisionmaker has got to assume, and attorneys will have to advise him or her, that the writ of habeas corpus almost certainly extends to wherever the U.S. holds de facto control and where practical considerations do not forego extending the writ (the Green Zone in Iraq and Bagram, Afghanistan come to mind). Further, such attorneys should also advise that enemy combatants there enjoy the protection of at least the Fifth Amendment Due Process rights identified in Hamdi and probably others as well. Nor can congressional action limit or constrain the exercise of these rights in any meaningful way. The entire process of detaining enemy combatants is going to be crafted via a series of federal district court and appellate court decisions attempting to apply the murky judicial methodology the Court provided today (and which is probably going to change tomorrow). If I were in OLC, I would certainly recommend that the President and Congress assume they are totally bound by the Constitution overseas, unless or until the Court tells me otherwise.

Those who, like John Kerry, are tempted to think this is a good thing may wish to read Victoria Toensing's Senate testimony on the difficulties faced in bringing a criminal action against foreign combatants:

A federal trial in the United States may preclude reliable evidence of guilt. When the evidence against a defendant is collected outside the United States (the usual situation for international terrorism investigations) serious problems arise for using it in a domestic trial. The American criminal justice system excludes evidence of guilt if law enforcement does not comply with certain procedures, a complicated system of rules not taught to the Rangers and Marines who could be locked in hand-to-hand combat with the putative defendants. For sure, the intricate procedures of the American criminal justice system are not taught to the anti-Taliban fighters who may capture prisoners. Nor to the foreign intelligence agencies and police forces who will also collect evidence. At just what point is a soldier required to reach into his flak jacket and pull out a Miranda rights card? There are numerous evidentiary and procedural requirements of federal trials that demonstrate the folly of anyone thinking such trials should be used in wartime for belligerents. Below is a sampling of the legal questions facing the prosecutor: " Does the Speedy Trial Act start running when the combatant is captured?

" Should the Miranda rights be given in Arabic? Which dialect?
" If the belligerent wants a lawyer and cannot afford one should she be sent at taxpayer expense to Kabul to confer with her client?

" Does the requirement that an arrested person must appear before a federal magistrate within several days to enter a plea apply?

" What happens when all the evidence showing guilt is not admitted because it was collected by a foreign police force using procedures not in compliance with United States Constitutional standards?

" What happens when all the evidence showing guilt is not turned over to the United States because a foreign intelligence agency does not want to reveal sources and methods?

" For evidence to be used against the defendant, how does the prosecution establish chain of custody, an impossible procedure on the battlefield?

Not for nothing did Justice Thomas, in Hamdi, write a stinging dissent which spelled out in clear and ringing language the dangers of an arrogant Court which presumed to usurp powers for which it possessed neither the aptitude nor the knowledge:

The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners’ habeas challenge should fail, and there is no reason to remand the case. The plurality reaches a contrary conclusion by failing adequately to consider basic principles of the constitutional structure as it relates to national security and foreign affairs and by using the balancing scheme of Mathews v. Eldridge. I do not think that the Federal Government’s war powers can be balanced away by this Court. Arguably, Congress could provide for additional procedural protections, but until it does, we have no right to insist upon them. But even if I were to agree with the general approach the plurality takes, I could not accept the particulars. The plurality utterly fails to account for the Government’s compelling interests and for our own institutional inability to weigh competing concerns correctly. I respectfully dissent.

...Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive. I cannot improve on Justice Jackson’s words, speaking for the Court:

The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.”.

...again for the same reasons, where “the President acts pursuant to an express or implied authorization from Congress, he exercises not only his powers but also those delegated by Congress[, and i]n such a case the executive action ‘would be supported by the strongest of presumptions and the widest latitude of judicial interpre-tation, and the burden of persuasion would rest heavily upon any who might attack it.’” Dames & Moore, supra, at 668 (quoting Youngstown, supra, at 637 (Jackson, J., concurring)). That is why the Court has explained, in a case analogous to this one, that “the detention[,] ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger[, is] not to be set aside by the courts without the clear conviction that [it is] in conflict with the Constitution or laws of Congress constitutionally enacted.” Ex parte Quirin, 317 U. S. 1, 25 (1942). See also Ex parte Milligan, 4 Wall. 2, 133 (1866) (Chase, C. J., concurring in judgment) (stating that a sentence imposed by a military commission “must not be set aside except upon the clearest conviction that it cannot be reconciled with the Consti-tution and the constitutional legislation of Congress”). This deference extends to the President’s determination of all the factual predicates necessary to conclude that a given action is appropriate.

Thomas' words now seem almost prescient. In a separate post, Deborah Pearlstein observes:

Though the opinion in Munaf and Omar should give us all some pause, I'm still thinking that yesterday's Boumediene opinion comes as close as I've seen the court come to sounding the death knell for broad judicial deference to the executive on matters of national security.

I'm inclined to agree. Instead of an elected Commander in Chief as outlined under our Constitution, we now have a committee of nine unelected jurists who wish to prosecute war by bringing in international law, ignoring their own precedent and the text of the Constitution as the urge strikes them:

The overlap between this case and the lobster case is that both of them have to do with a blurring of the line between US and foreign law. The US courts here are undertaking to enforce Honduran law -- which they understand imperfectly at best, and whether or not the regulations were actually in force at the time. They are going hog wild looking for ways to make crimes out of ordinary behavior.

The SCOTUS case is a case where people are being treated as if American citizens' rights applied to everyone, everywhere. This is not so, has never been so, and really ought not to be so. American citizenship carries with it rights but also duties, and a debt to the nation that supports those rights. If you want those rights, you should take the lawful steps necessary to apply for immigration.

You shouldn't get them for waging war against us. If you do so honorably, you are entitled to POW protections under the Geneva Conventions. If you do so dishonorably, you are not even entitled to that.

As the Court continues to render citizenship and sovereignty increasingly irrelevant, one wonders what will be left to defend and more importantly, whether we will be left any means of defending it?

Posted by Cassandra at June 16, 2008 07:23 AM

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I think the Supreme Court's message is clear. POWs (the real kind) are held under the Geneva Conventions, and do not have the rights of Habeus Corpus, Miranda rights, etc. Unlawful combatants who are detained have the full rights of an American citizen.

The solution? Don't capture them, don't detain them. Treat them as allowed by the Geneva Convention and execute them on the spot.

Posted by: MikeD at June 16, 2008 10:20 AM

And you have NO idea how angry I was to have to type that. Because that's the ONLY option the SCOTUS has left to the military.

Posted by: MikeD at June 16, 2008 10:21 AM

Oh, no, they haven't. Military men who summarily execute persons attempting to surrender will be prosecuted for murder under the UCMJ.

What SCOTUS has done is required the military to treat terrorists as simple criminals. They have tied their hands entirely, not just partially.

Perhaps we'll be able to get them on tax evasion, after we can't get the evidence to prosecute them for their real crimes. I hear that worked on Capone. On the other hand, terrorists don't owe taxes, because they aren't American citizens.

Posted by: Grim at June 16, 2008 10:35 AM

Clearly, this decision has wrought a great disturbance in the Force. I sense a great deal of angst and discontent in the Blogosphere (wherever that is!).

How will the Supreme Court enforce this decision? How many companies of lawyers do they command?

The obvious answer is that beginning now, soldiers and Marines will be judged by their political views, even if they have none. Ambitious JAG officers will be able to use this as a club against any officer or non-com that they perceive to be evading the observance and enforcement of this edict. Or just people that they don't like. Period.

The effect on asymetrical COIN operations will be bad enough, but the worse effect is to bring political (legal) oversight and meddling into the day-to-day military operations of the Army, Navy and Marines. Does the Air Force ever take prisoners?

This is clearly an over-reach by the Supreme Court, and a clear violation of separation of powers. But I'm sure it makes all the right people very happy.

Posted by: Don Brouhaha at June 16, 2008 10:58 AM

Perhaps we'll be able to get them on tax evasion...

Nah. Charge 'em with *legal* possession of an automatic weapon.

The ACLU will eat them alive...

Posted by: BillT at June 16, 2008 10:59 AM

When the Supreme Court sabotaged the military tribunal process, that was an extremely good tactical and strategic move on the part of the domestic insurgency. This prevented several counter-attack options available, leaving only nuclear type options available like pardoning military execution squads or interrogators from SCOTUS or Legislative persecution.

People analyzed Bush's character and decided Bush wasn't going to use the nuclear arsenal in a war against the SCOTUS, thus leaving many many options open to the domestic insurgency for attacks.

Posted by: Ymarsakar at June 16, 2008 12:25 PM

This is what disturbs me so. No one who has been affiliated with the military for any length of time wants to see arbitrary and summary execution of unarmed combatants, but this type of ruling will make any sort of clemency so burdensome as to be utterly impractical.

They may think they are making war too difficult to wage with the ultimate end of ending war, but I very much doubt they will change human nature. I fear what they are doing is kicking away the only restraints that stand between us and complete savagery.

Good luck on getting rid of war. So far as I've noticed the U.N. "peacekeepers" haven't been terribly successful with that either.

Pull out any history book. Sooner of later, it comes to you.

Posted by: Cassandra at June 16, 2008 01:16 PM

So far as I've noticed the U.N. "peacekeepers" haven't been terribly successful with that either.

Then there's the reason the UNPROFOR troops switched from those fashionable blue berets to US-style kevlar helmets. The UN High Command wasn't terribly successful at keeping them from getting killed every time they were sent to some new garden spot.

As far as *legal* advice to the troops goes, my favorite JAG-quote is from the O-3 who briefed me prior to my final deployment: "Only the Lone Ranger is authorized to shoot to wound. *You* shoot to kill."

And, speaking of legalities, what's the SCOTUS take on Posse Comitatus these days? You know, the Act that prevents Federal troops from being used in a law enforcement role, such as pursuing and seizing criminals -- heh -- on the battlefield...

Posted by: BillT at June 16, 2008 01:50 PM

This is nothing new. SCOTUS has been doing this for years. They decide what they want to see happen based upon their own political or ideological beliefs, and then create a legal fig leaf to cover themselves.

They have issued so many nonsensical legal opinions over the last 40-50 years, that it beggars the imagination. Remember, to a liberal, the ends justify the means so long as the cause of the Revolution is advanced.

What gets me is the shock of so many libs, like Sandra Day O'Connor, who are outraged at attempts to politically rein in judges, such as direct elections. They spout on and on about "judicial independence", but what do they expect. The more the courts interject themselves into deciding political questions, the more they are viewed as nothing more than powerful politicians.

Posted by: a former european at June 16, 2008 01:54 PM

They may think they are making war too difficult to wage...

Nope. They're just making it more difficult for *us* to wage war.

The entire *rest* of the world doesn't give a rat's rosy red rectum what the Supremes think...

Posted by: BillT at June 16, 2008 01:56 PM

Not only has the SCOTUS foreclosed options for the military, but it hasn't left many for the rest of the American citizenry either. One thing that I haven't seen commented on much is that, with this decision, SCOTUS has nullified a clause of the U.S. Constitution. I have never heard of any court in America, anywhere (except for some questionable cases during the Civil War) nullifying part of the Constitution, and of course there is no Constitutional basis for doing so.

(The specific part that was nullified is the Exceptions Clause, from Article 1. This clause allows Congress to pass legislation limiting the jurisdiction of the various Federal courts. In regards to habeus corpus cases at least, the Court has now rejected Congress' authority under the Exceptions Clause. Kennedy's majority opinion made it absolutely clear that, with two very limited exceptions, the Court regards its jurisdiction in habeus cases as universal.)

So the first thing you say to yourself is, "All right, we can fix this with a Constitutional amendment." Putting aside for the momen the practical concern that there hasn't been a Constitutional amendment of any kind make it all the way through the process since the early '70s, there's this bigger concern: The Court has now assumed for itself the authority to nullify any part of the Constitution that limits its authority. If an amendment limiting the Court's authority in the detainees matter is passed, who is to say that the Court won't simply nullify it too?

So, to sum the situation up: Constitutional amendment is out. Impeachment is also about, because first of all that in itself won't reverse the decision, and besides, if the Court's authority over the Constitution is universal, who is to say that it won't find the Impeachment Clause to be unconstitutional too? The sad conclusion for American citizens is that the only remaining course of action appears to be revolt.

Posted by: Cousin Dave at June 16, 2008 04:25 PM

The sad conclusion for American citizens is that the only remaining course of action appears to be revolt.

And prayer.

And selective retroactive abortion.

Posted by: BillT at June 16, 2008 04:34 PM

Oh now, having a republic was such a nuisance anyway.

Thomas would have made a damn fine chief justice, you know if we even knew what a republic was.

Posted by: Pile On at June 16, 2008 07:26 PM

...if we even knew what a republic was.

Well, *sure* we know.

And ain't it interesting to see how many of the really horrendous regimes across the world say they're running a *Democratic* one. Or were.

Ask someone who lived east of the Wall how peachy his or her daily existence was...

Posted by: BillT at June 17, 2008 02:06 AM

Actually, I've thought of another Constitutional way out of this mess. The POTUS has the power to temporarily suspend Habeus Corpus. To avoid getting the knickers of every conspiracy theorist in a bunch, would it not be possible for him to suspend the right of Habeus Corpus for all NON-US Citizens? Citizens are untouched, and life goes on as usual. But non-Citizens get their (non-)right of Habeus suspended.

Posted by: MikeD at June 17, 2008 10:05 AM

Might as well. The Libs have already been screaming "Bush suspended habeas corpus!" for a year -- it just might shut them up if they saw him actually *do* it.

It'll sure make them think twice about the next item they start nattering about...

Posted by: BillT at June 18, 2008 08:47 AM

So far as I've noticed the U.N. "peacekeepers" haven't been terribly successful with that either.

Don't judge them too soon, now. They still have plenty of boy and girl children to deal with. Until they are finished, you really can't set timetables on their ultimate victory goals.

And selective retroactive abortion.

That sounds like ansatsu to me.

Thomas would have made a damn fine chief justice, you know if we even knew what a republic was.

Rome thought a Republic was giving citizenship to foreign auxiliary troops that have served in the legion for 20 years.

The President is the only one that can enforce habeas corpus on foreigners. Thus all the President has to do is to veto it. Meaning, don't sign it. Don't act like it is law and don't provide the power of the Executive Branch in "enforcing" it.

Buuuut, Bush wants to get along to go along. There's a *thdud* for you.

It'll sure make them think twice about the next item they start nattering about...

Getting inside the domestic insurgency's OODA cycle is extremely important. We have to shock them, attack them, and make them react, or otherwise we are in for a world of pain.

Posted by: Ymarsakar at June 18, 2008 05:33 PM

If Bush still had his gonads and wasn't so beaten down, I would suggest another approach entirely. Since Congress exercised its Constitutional power to limit what SCOTUS considers, I would simply announce that SCOTUS overstepped its bounds and violated the Constitution by not deferring to legislative superiority on this question. Therefore, he, Bush, would continue with the present arrangement until or unless Congress sent new legislation changing the current procedures.

Sure, that would be a Constitutional crisis, but SCOTUS precipitated the crisis. It would do them good to hear a "no". I didn't see where Justice Kennedy even addressed this. Souter attempted to provide a lame reference, but he was not at all persuasive. He simply claimed SCOTUS was paying attention to a different part of the Constitution.


Posted by: Rick Caird at June 19, 2008 02:41 PM

If the Republicans in Congress had any guts, they'd realize that as a co-equal branch of government also sworn to uphold the Constitution, SCOTUS just dissed them big time.

Everyone seems to think this case is about SCOTUS rebuking the President. Not so.

This was about whether our elected representatives have the power to define a different set of rules governing the treatment of detainees who are captured during wartime, as distinct from the legal set of rules which governs the treatment of American citizens accused of crimes that have nothing to do with war.

And you know what?

SCOTUS just told Congress they do not have that power.

Considering that Congress defines the jurisdiction of the bloody Supreme Court, I think that is a pretty f***ing breathtaking act of judicial overreach.

It isn't on Bush to smack SCOTUS down. It's on Congress.

Big time.

Posted by: Cassandra at June 19, 2008 02:49 PM

Well, Cassandra, that leaves just two questions for your husband and every other member of the Armed Forces to answer: have the domestic insurgency crossed the line to "domestic enemy" as contained in their oath? and what do they plan to do about it?

Posted by: SDN at June 19, 2008 03:04 PM

"It isn't on Bush to smack SCOTUS down. It's on Congress."
Yup. Absitively, posolutely!

Not that I generally put much stock in polls but even dumb old, distracted, apathetic John Q. Public recognizes the failure of Congress to uphold their oaths and duty to the Nation as seen in the perpetually abysmal approval ratings of the Congress.

Leadership... It's not on the agenda in Congress!

Posted by: bt_J-Q-Public_hun at June 19, 2008 04:13 PM