Words of Wisdom from Ann

Justice Kennedy: American Idle

by Ann Coulter

Posted: 06/18/2008

After reading Justice Anthony Kennedy's recent majority opinion in Boumediene v. Bush, I feel like I need to install a "1984"-style Big Brother camera in my home so Justice Kennedy can keep an eye on everything I do.

Until last week, the law had been that there were some places in the world where American courts had no jurisdiction. For example, U.S. courts had no jurisdiction over non-citizens who have never set foot in the United States.

But now, even aliens get special constitutional privileges merely for being caught on a battlefield trying to kill Americans. I think I prefer Canada's system of giving preference to non-citizens who have skills and assets.

If Justice Kennedy can review the procedures for detaining enemy combatants trying to kill Americans in the middle of a war, no place is safe. It's only a matter of time before the Supreme Court steps in to overrule Randy, Paula and Simon.

In the court's earlier attempts to stick its nose into such military operations as the detainment of enemy combatants at Guantanamo, the court dangled the possibility that it would eventually let go.

In its 2006 ruling in Hamdan v. Rumsfeld, the court disallowed the Bush administration's combatant status review tribunals, but wrote: "Nothing prevents the president from returning to Congress to seek the authority (for trial by military commission) he believes necessary."

So Bush returned to Congress and sought authority for the military commissions he deemed necessary -- just as the court had suggested -- and Congress passed the Military Commissions Act. But as Justice Antonin Scalia wrote in dissent in the Boumediene case last week: It turns out the justices "were just kidding." This was the legal equivalent of the Supreme Court playing "got your nose!" with the commander in chief.

The majority opinion by Justice Kennedy in Boumediene held that it would be very troubling from the standpoint of "separation of powers" for there to be someplace in the world in which the political branches could operate without oversight from Justice Kennedy, one of the four powers of our government (the other three being the executive, legislative and judicial branches).

So now even procedures written by the legislative branch and signed into law by the executive branch have failed Kennedy's test. He says the law violates "separation of powers," which is true only if "separation of powers" means Justice Kennedy always gets final say.

Of course, before there is a "separation of powers" issue, there must be "power" to separate. As Justice Scalia points out, there is no general principle of separation of powers. There are a number of particular constitutional provisions that when added up are referred to, for short, as "separation of powers." But the general comes from the particular, not the other way around.

And the judiciary simply has no power over enemy combatants in wartime. Such power is committed to the executive as part of the commander in chief's power, and thus implicitly denied to the judiciary, just as is the power to declare war is unilaterally committed to Congress. As one law professor said to me, this is what happens when the swing justice is the dumb justice.

Kennedy's ruling thus effectively overturned the congressional declaration of war -- the use of force resolution voted for by Hillary Clinton, John Kerry, 75 other senators as well as 296 congressmen. If there's no war, then there are no enemy combatants. This is the diabolical arrogance of Kennedy's opinion.

We've been through this before: Should the military run the war or should the courts run the war?

I think the evidence is in.

The patriotic party says we are at war, and the Guantanamo detainees are enemy combatants. Approximately 10,000 prisoners were taken on the battlefield in Afghanistan. Of those, only about 800 ended up in Guantanamo, where their cases have been reviewed by military tribunals and hundreds have been released.

The detainees are not held because they are guilty; they're held to prevent them from returning to the battlefield against the U.S. Since being released, at least 30 Guantanamo detainees have returned to the battlefield, despite their promise to try not to kill any more Americans. I guess you can't trust anybody these days.

The treason party says the detainees are mostly charity workers who happened to be distributing cheese to the poor in Afghanistan when the war broke out, and it was their bad luck to be caught near the fighting.

They consider it self-evident that enemy combatants should have access to the same U.S. courts that recently acquitted R. Kelly of statutory rape despite the existence of a videotape. Good plan, liberals.

The New York Times article on the decision in Boumediene notes that some people "have asserted that those held at Guantanamo have fewer rights than people accused of crimes under American civilian and military law."

In the universal language of children: Duh.

The logical result of Boumediene is for the U.S. military to exert itself a little less trying to take enemy combatants alive. The military also might consider not sending the little darlings to the Guantanamo Spa and Resort.

Instead of playing soccer, volleyball, cards and checkers in Guantanamo, before returning to their cells with arrows pointed toward Mecca for their daily prayers, which are announced five times a day over a camp loudspeaker, the enemy combatants can rot in Egyptian prisons.

That may be the only place left that is safe from Justice Kennedy.

In a sweeping decision that will have myriad consequences -- foreseen and unforeseen --the Supreme Court found that the right of habeas corpus under the U.S. Constitution applies to terrorist detainees held at Guantanamo Bay, Cuba. 

In a controversial 5-4 decision written by Justice Kennedy that is already being reported as a major loss for the Administration’s detainee policy, the Supreme Court ruled that the petitioners detained in Guantanamo Bay, Cuba, have the constitutional privilege of habeas corpus; that the Detainee Treatment Act’s (DTA) procedures for reviewing their statuses was not an adequate and effective substitute for the habeas writ; and that section 7 of the Military Commissions Act (MCA) is an unconstitutional suspension of the writ.  In other words, the Constitution applies to unlawful enemy combatants at Gitmo, and the one-time Combatant Status Review Tribunals (CSRT’s) didn’t cut it.

According to the majority opinion, the writ may be suspended only when public safety requires it in times of rebellion or invasion.  None of the cases cited by either side in this dispute, regarding the writ’s geographic scope at common law, was dispositive.  The Court also rejected the government’s reading of Johnson v. Eisentrager (U.S. courts had no jurisdiction over German war criminals held in a U.S.-run German prison) as formalistic and constricted.  Extraterritoriality questions, it stated, turn on “objective factors and practical concerns, not formalism.”  The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the “power to decide when and where its terms apply.”  The political branches may not “switch the Constitution on and off at will,” nor may they decide “what the law is.”  In essence, the Court said that because the U.S. has exclusive dominion and control over the military base at the U.S. Naval Station at Guantanamo Bay, the Constitution applies to anyone held there by the United States government.

Justice Kennedy rejected the government’s suggestion that the case should be sent back to the D.C. Circuit Court for further resolution.  Due to the “exceptional circumstances” presented in this case -- the “grave separation of powers issues” and those petitioners have been denied “meaningful access to a judicial forum for years” -- Justice Kennedy ruled that the petitioners could proceed with their habeas actions in the District Court immediately.  And rather that offer a comprehensive summary of the actual procedures for adequate habeas, the Court said merely that habeas entitles the detainee to a “meaningful opportunity to demonstrate that he is being held” and that the habeas court must have the power to order the “conditional release of an individual unlawfully detained.”  The Court recognized that certain accommodations might be necessary to carry out the ruling, including, but not limited to, channeling the cases to a single federal District Court and protecting sources and methods of intelligence gathering. 

The practical effect of the decision is that approximately 200 detainees at Guantanamo (70 of the remaining 270 have already been approved for transfer or release) will be able to file a lawsuit in federal district court and force the government to prove that they are unlawful enemy combatants.  The government will have to decide whether it wants to prove that each detainee is an unlawful enemy combatant in federal district court, and if so, will have to pull together the evidence quickly to prepare for the habeas/administrative hearings in court. 

The decision also calls into question whether the military commissions will continue as planned.  Under the Military Commissions Act, the court only has jurisdiction over detainees properly deemed to be “unlawful enemy combatants.”  Each of the 200 detainees remaining at Gitmo went through a CSRT, and each was determined to be an unlawful enemy combatant.  Armed with this new decision, lawyers for the commissions’ defendants will rightfully argue that the military commissions does not have jurisdiction over their clients because those clients were determined to be unlawful enemy combatants by the now discredited CSRT’s. 

No doubt, if there are habeas hearings in federal district court, some judges will ultimately find that many of the detainees were properly classified as unlawful enemy combatants.  Other cases may result in a judge finding that the specific detainee is not an unlawful enemy combatant, and the judge will order the detainee released.  Whether any country will willingly accept that detainee remains to be seen. 

Although it is too early to tell, other unintended consequences of this decision might include detainees petitioning the government for asylum once ordered released by a federal judge (because no country wants them), and/or suing the United States for millions of dollars for “unlawful imprisonment.”

Chief Justice Roberts wrote a scathing dissent, joined by Scalia, Thomas, and Alito, arguing that the court struck down the “most generous set of procedural protections ever afforded aliens detained by this country” without bothering to say what due process rights the detainee possess or how the statute fails to vindicate those rights and before the statute was even allowed to be tested.  According to the Chief, the majority’s opinion was less about the detainees and all about the “control of federal policy regarding enemy combatants.” 

Justice Scalia, in a separate dissent, predicted that the holding will “almost certainly cause more Americans to be killed.”