One of the National Review’s advocates of codpiece diplomacy, Peter Wehner, takes issue with the Supreme Court decision in Boumediene v. Bush, determining that non-citizens locked up in Guantanamo Bay have the right to challenge their detention. As the majority noted: “Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention.’” I’ve already discussed this case, and the dissent by four Catholic justices, here. I’ve argued that it is a moral issue.
Wehner takes an interesting angle, in that he makes reference to the Supreme Court and abortion:
“What moral universe do Justices Kennedy, Breyer, Ginsburg, Stephens, and Souter inhabit when they are willing to manufacture constitutional rights for unlawful enemy combatants who want to slit the throats and watch innocent Americans bleed and die while at the same time uphold manufactured constitutional rights that allow people to abort innocent unborn children?”
He favorably quotes Scalia’s screed about how this will lead to more Americans being killed, with its consequentialist implications. In fact, Wehner is right to connect these moral issues, but totally wrong in the conclusion he draws. For yes, the disconnect be observes is a real one, but so is his own disconnect, his willingness to defend the unborn while in the same breath lock up largely-innocent people in a remote military prison while denying them the most basic rights, and even subjecting them to torture. This too is a reflection of moral values, of the dignity of the human person. And make no mistake, the minority in Boumediene decided unjustly. If you are still in doubt about that, peruse this McClatchy article and the type of men being held in these prisons– they are most certainly terrorist masterminds, and most were simply “low level Taliban grunts, innocent Afghan villagers or ordinary criminals.”
The error is always a form of consequentialist reasoning (not surprising in an Enlightenment-influenced culture, since the dominant strain of utilitarianism is a mere special case of consequentialism). For one side, it is better that the “enemy” suffers rather than risk the safety of the American people. Security by all means necessary. For the other, the welfare of the woman is contingent on her having the right to terminate her unborn child. It’s the same logic. And yet people like Wehner refuse to join the dots and make the connection.
I can predict the response to this post. The “right” to abortion was not in the constitution, pulled out of thin air, while the dissenters in the present case are applying proper legal and constitutional precedent. Hogwash. Scalia is arguing from political preferences, in exactly the same manner as the authors of Roe v. Wade. They all took some notion of welfare that they deemed important in society (“security”, “freedom of choice”) and crafted a legal argument around it. It matters not whether it is a positive or negative right within a written constitution.
The charade that this is a group of technocratic judges following the letter of the law should be ended. Everybody knows that in political cases, the judgments follow political preferences (the most notorious being Bush v. Gore). To pretend otherwise has the effect of insulating judges from the implications of their decisions– lacking accountability in a way that is not possible for the executive or the legislative branches. It is for this reason we don’t hear about Catholics trying to deny communion to Justice Kennedy for supporting abortion or Justice Scalia for supporting torture. But the moral law applies to them too.
Remember this:
“Then he will say to those on his left, ‘Depart from me, you accursed, into the eternal fire prepared for the devil and his angels. For I was hungry and you gave me no food, I was thirsty and you gave me no drink, a stranger and you gave me no welcome, naked and you gave me no clothing, ill and in prison, and you did not care for me.’ Then they will answer and say, ‘Lord, when did we see you hungry or thirsty or a stranger or naked or ill or in prison, and not minister to your needs?’ He will answer them, ‘Amen, I say to you, what you did not do for one of these least ones, you did not do for me.’ And these will go off to eternal punishment, but the righteous to eternal life.”
The stakes are high.
MM
As I tell people — the US revolted against England because it held some rights to be inalienable. Now they tell us they are inalienable only for US citizens.
Well I’ll be. A rational conservative rebuke of an idea from the National Review. I think you just blew my mind.
A lot of people seem to want to make the Boumediene decision into something it’s not. On talk radio today someone was saying the decision meant detainees would be able to file lawsuits based on the quality of food at Gitmo, and that it would necessitate closing the base down and moving all the detainees to the United States. Well, no. What the decision means is that detainees will be able to file a habeas petition challenging the legality of their detainment. There’s no guarantee that any of the detainees will even get a hearing on their petitions, let alone that the courts will order any of their release. In fact, it is a practical certainty that the detainees ordered released via habeas will be far lower than the number of detainees already released under the old procedure.
At the same time, the case is not about the legitimacy of torture, or about the government’s ability to hold people without review. Congress had already established review procedures for the detainees, and will likely do so again now that the court has ruled the previous law deficient (ironically, one of the results of Hamdan, Hamdi, and Boumediene is that many detainees will end up waiting years longer to have their status resolved than they would have otherwise).
This Conservative Catholic Quartet (of dissonant and dissenting noise) should be asked kindly to leave the stage
It is common knowledge that crowds rioted during the first performance of Stravinsky’s Rite of Spring. Our hopefully more civil Catholic crowd need simply here request that these four benchment–after this recent cacaphonic travesty of justice with their opinions– leave the Court and return home permanently to their surely wonderful Catholic families.
Asking the Court’s only anti-Roe justices to resign – based on a dissenting opinion no less, seems a strange suggestion.
I ask with all sincerity: Did you actually read Scalia’s dissent, or are you receiving all of your information from secondary sources? Scalia did mention the real-world consequences of the decision at the outset of his dissent, but spent the remainder of his time deconstructing Kennedy’s terrible legal reasoning.
A more sober assessment from Rick Garnett:
We can argue the legalities all night long. But the basic issue is that these people are unjustly imprisoned and that the dissenters are supporting this state of affairs.
Stuart,
I think Rick makes a lot of sense here. The irony is that plenty of Catholic countries (Italy, say) don’t have habeas at all, while others (Ireland, say), have it, but don’t apply it to the actions of their military. Habeas corpus may be a very good thing, but there’s nothing particularly Catholic about it.
We can argue the legalities all night long.
Well, it was a *legal* decision. One would think the particulars of the law would be quite important.
But the basic issue is that these people are unjustly imprisoned the dissenters are supporting this state of affairs.
Again, granting detainees the right to file habeas petitions doesn’t mean that they will be released. Whether the detainees should be released, or even whether they are being unjustly detained, was simply not at issue in the case.
Also, is it really your position that all of the detainees are unjustly imprisoned? Even Khalid Sheikh Mohammed? How do you know that the people remaining at Gitmo are innocent?
Well, let me know when the Irish army picks up some random Aghfan herdsmen and imprisons them, in perpetuity, on the Skellig islands.
It was a legal decision, yes, but it was also a moral decision.
Cranky:
Scalia deconstructed Kennedy’s legal reasoning with even worse legal reasoning. My favorite part was found in Scalia’s first paragraph.
“America is at war with radical Islamists. . . . one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. “
How can one argue with that reasoning? Obviously looking at the necessity for secret police and gulags in the Soviet Union there was a real threat from reactionaries and Kulaks. And, of course, the existence of the SS and concentration camps in Nazi Germany demonstrated the real threat posed by the Jewish menace.
Did he acquire these fine reasoning skills from the Jesuits at Georgetown or at Harvard Law?
[...] Get the Chance to Bomb Iran? There was an interesting discussion yesterday in the comments to this post, at Vox-Nova on the likelihood of McCain’s bombing Iran. It seems to me, though, that we may [...]
[...] McCain Get the Chance to Bomb Iran? In yesterday’s post on the Boumediene decision, there was a bit of a side discussion on the likelihood of McCain’s bombing Iran. It seems to [...]
I hear a lot of talk on the radio about granting others “Constitutional rights,” but not much talk acknowledging human rights.
Kyle
Exactly. That’s my point. Even the United States was founded upon that principle: that there are human rights which trump nation-states. The nation-state will always find just cause for its ignoring of basic rights (England did, and it wasn’t entirely for bad reasons — taxation in the colonies was not that high, and was in part to help keep the colonies running and defended from outside threats). However, there was a sense that — no matter how just the end might be, not all means are valid, and a state loses authority when it acts against inalienable rights. And one can say the United States has done so on many occasions, not just here (abortion and slavery being two other prime examples).
This does not mean, however, that one needs to destroy the state via revolution, but one needs to point out that when a state acts against inalienable rights, its declarations in such situations are null and void. So I think the basis of the US in its inception provides sufficient cause to rule as the majority did.
Prisoners of war aren’t granted habeus corpus. To my mind, no one has ever thought that necessary. If you capture someone on a battlefield when they were fighting against you, they seem to me to be a prisoner of war. You are entitled to hold them until the end of combat, and they are entitled to fair treatment. Coercive interogation tactics (including, but not limited to any kind of torture) are prohibited. It seems to me that many of our prisoners (those in Gitmo, Bagram, etc.) meet this description. They should not be tried. Others (like KSM), it seems, are guilty of crimes against humanity, and should be tried for those crimes, in normal courts, under habeus corpus. I think the entire idea that existing juridical practices cannot provide guidance in the war on terror is very problematic. The Bush administration has erred in judgment and committed some great injustices. It would be helpful to hear someone propose an alternative strategy that allows us to adhere to moral norms and provide security, but I don’t think I have. Most people who oppose Gitmo seem to me to have bought into the Bush administration’s argument that treating detainees as POWs (except for those who have committed clear terrorist crimes) is not feasible, but I don’t know why. The Bush administration is far worse, clearly (let’s imprison people, not give them any form of redress, release some of them in a seemingly arbitrary fashion, and say we will hold the others in perpetuity on the basis of trials that don’t meet minimal standards of justice), with a strategy that is unjust and damaging to America’s standing while also not protecting us well. What is the alternative solution that Biden/Obama et al. are offering? What about McCain. I’d like to hear more of a plan of future policy, and less on the constitutionality of current policy (especially when its constitutionality seems to depend, to most of those in the debate, not on specific statutes but on moral issues like prudence and justice or practical issues like security). Let’s take those concerns and apply them in creating a new way.
The men held at Gitmo are not Prisoners of War according to the U.S. If they were POWs habeaus corpus wouldn’t be an issue, because the reason they were being held would be known, i.e. they are prisoners of war. The problem, like so many, is that the Administration does not want to use existing classifications and has created a new classification ex nihilo, illegal enemy combatant. Other countries that have experienced terrorism don’t do this. England and France both use the legal system to address terrorism, each allowing considerable lengths of detention before charges are filed.
SB ,
I think Prof Garret is right on. Too many people have jumped on this OPinion without reading it and in fact knowing what the issues were.
As ROberts points out the majority did not even go into detail what rights these folks have. In my view it is quite possible that the people detained willbe worse off not better under this decision. However likely the new procedures as to the prisioners I suspect will look a lot like the legislation that was in place.
Morning
Just to clarify it isnot a dissent’s viewpoint to get people unjustly imprisioned. The whole point they are making and especially ROberts is that the procedures that just passed could have been an adequate safeguard and indeed subistiute for Habeus Corpus.
I think MZ Forrest’s comment is most on point. It seems like the reason there is a bizarre legal puzzle in the first place is because the Bush Administration made up a new legal category of non-person for its own purposes. Perhaps a better Supreme Court decision would have been “BS, classify them all right now as either POW’s or criminals, and then follow existing law”.