The Supreme Court has issued its
ukase ruling in the case of Boumediene v. Bush, finding that the 2006 Military Commissions Act, in its provision in section 7 for alternative legal procedures for 'enemy combatants', is unconstitutional. This, because those alternative mechanisms, as explained by Glenn Greenwald in his gloss on the ruling, were found by the majority to be an inadequate substitute for habeas corpus. Much ink and many pixels have been spilled in praise, and denunciation, of the decision. Not wishing to add needlessly to the choruses singing loudly on either side of the opinion, I hope to suggest that the potential implications of the ruling are perhaps more interesting than those teased out by partisans and detractors. However, first things must come first.
Article III, Section 2 of the Constitution bestows upon the Congress to make such exceptions to the jurisdiction of the judiciary that it deems fitting:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Arguably, the status of Guantanamo detainees having been removed from the jurisdiction of the Court, the Court lacked even the authority to take up the case, let alone to rule, in the words of the immortal Tony Kennedy, that exempting this class of cases from the jurisdiction of the Court would "permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say 'what the law is.'" Logicians may wish to ponder the implications of such stentorian nonsense, as it quite clearly entails that the Constitution is anomalous with respect to itself. Quite to the contrary, recognizing that detainees deserved some form of due process, Congress established a regime of military commissions and removed them from appellate jurisdiction, which determination, fully in accordance with the Constitution, the Court declined to recognize. We must be plain about what this ruling actually entails, namely, that certain provisions in the Constitution create "anomalies", and are, in consequence, unconstitutional. Acting upon or appealing to them is unconstitutional. Succinctly stated, the Constitution is unconstitutional. Once more, logicians and Critical Legal Theorists may find something to ponder in all of this; the rest of us can simply ignore it as an attempt to say that A is equivalent to non-A.
However, there is, in my estimation, more at stake than - as Leon Wolf characterizes the matter, "a court which recognizes no limits on its authority". In fact, the entire episode stands as an illustration of the failure of our Constitutional architecture, for all three of the branches of government have covered themselves in obloquy.
The Court has comported itself shamefully by acknowledging no limits upon its authority, and by brooking no interference in these presumed plenipotentiary powers; there is nothing especially noteworthy in this fact considered alone, as this arrogation of authority is a feature of modern jurisprudence. The Court is a sitting superlegislature or a permanent Constitutional Convention - this, we already know.
The executive branch, likewise, has comported itself shamefully, proclaiming, in a version of penumbras-and-emanations theory perversely beloved on the right, that the powers of the executive as Decider, as he-who-decides-the-exception, are virtually limitless if only the all-encompassing ambiguity of "national security" can be invoked. Laws can be suspended. Super-secret and special exemptions from duly enacted law, even law only lately signed by the president, are openly proclaimed; a prohibition on the use of torture may be signed into law, with the attached signing statement indicating that the Decider will authorize torture when it so pleases him to do so. Surveillance can be conducted in flagrant violation of long-standing law, and the only defense actually boils down to the claim of national security interests, for the right the analogue of the left's valorization of sexual license; any law must fall if it stands athwart the executive's judgment on national security, as it must if it thwarts the individual's determination for himself of the meaning of life. American citizens can be summarily decreed, for the purposes of law, to be deprived of the liberties ostensibly guaranteed to citizens under the Constitution. One could continue in this vein almost indefinitely, as one could with respect to the Court; the pathology is identical - a hubristic and imperial disregard for legitimate boundaries and norms. The Court declares itself the sole arbiter of the meaning of the law; the executive declares himself the sole arbiter of when the law shall apply.
As for the Congress, while I do not wish to belabour the point, that august body lies supine and acquiescent before both a usurping Court and a usurping executive. When the Court, in the name of some figment or other, invalidates duly enacted law, the Congress meekly submits, its token resistance to the usurpation the pathetic act of formulating ever more arcane language in an attempt to placate the Robed Masters. Pathetic, because subtlety can always be overcome by naked power, for what is cleverness to someone inclined to smite his adversaries with a gavel? The Congress has likewise effectively rolled over for most executive usurpations and abuses. Voices of protest and dissent will be heard here and there, now and then, but when the executive proposes some foreign policy, however dubious, the Congress steps to fetch the financing. When laws are flagrantly violated, the Congress, in the main, timorously goes along, refusing to exercise the power of the purse, lest it be perceived as disloyal to the Decider, in whom the protection and defense of the people reposes.
The Congress is increasingly a rubber-stamp for the two assertive branches, an American Politboro, if you will, its sole field of independent activity the disreputable one of trucking and bartering in favours for certain constituencies and rents for economic elites. It would not be excessive to suggest that the constitutional machinery has more or less ground to a halt, and that what operates in its stead is a pseudo-constitutional system which appropriates the rhetoric and terminology of the founding charter, but finds its animating principles elsewhere.
Now, I said above that the decision of the Court carries certain interesting implications. Before proceeding to sketch them for the reader, I should like to clear up one simple matter. The case before the Court turned on the question of the extension of habeas protections to enemy combatants, and the consequences of such an extension. There ought to have been no question concerning the rights of American citizens to such protections; alas, the Decider, in his characteristic overreaching, argued that by deeming American citizens to be enemy combatants, he could strip them of these protections. Though eventually rebuffed, the reason this was untenable ought to have been manifest: the Constitution itself stipulates that habeas corpus can only be suspended in cases of insurrection or invasion, meaning a large domestic rebellion or a foreign invasion; in either instance, major combat operations occurring on American soil. As neither circumstance obtained several years ago, or obtains now, the notion that American citizens could be placed beyond the procedures of the civilian legal system should have been recognized for what it was: a beguiling usurpation pimped by the usual catch-all suspect - indeterminate national-security powers. In other words, that nullity, of whom too much was made, Jose Padilla, received a raw deal.
Interestingly, this enables us to glimpse what is wrong with the Court's determination in Boumediene. For, if anything, the only constitutional language referring to habeas corpus clearly refers to domestic circumstances that might plausibly necessitate its temporary suspension; the applicability of such rights to foreign theaters of conflict - even though the war be unjust - is not contemplated, and obviously so, for, taking the constitutional language seriously, we would be forced to conclude - on the assumption that habeas applies to foreign theaters - that there are domestic circumstances in which it can be suspended, but no foreign circumstances in which it can be suspended. Which would be absurd. Constitutionally, habeas does not apply in foreign theaters of war, regardless of whether the territory lies in the formal jurisdiction of the United States, and this would seem to be established practice and precedent - which is not to say that prisoners of war, or enemy combatants, are bereft of legal protection. They are not bereft of such claims upon us, which is why Morning's Minion is wrong when he writes that
Rights under the natural law are not contingent on what passport you hold.
Rights obtaining under the natural law do not translate into specific, highly-articulated procedural claims, such as those at issue in the distinction between a military tribunal and civilian courts; natural rights are mostly general, and achieve specificity only in particular contexts, and with respect to any number of other factors and facts about the world, one of which is that citizens and non-citizens at war with one's nation are not entitled to the same set of legal procedures. Those who think the contrary ought to consider the ramifications of their position, inasmuch as it renders porous the boundaries between civilian and military actions, and such blurring can result in assimilation in either direction. In other words, the rationale implicit in established practice down through the centuries is a sound one, because according unlikes equivalent treatment is to perform an injustice, and to invite injustice.
None of this is to suggest that detainees are bereft of rights, nor even that the Military Commissions Act provided for adequate protection of those rights; it is to suggest only that there is no obvious right of foreign detainees to American civil procedures, and that, should those alternate procedures be inadequate, the Congress, having created them, is free to amend them. In point of fact, the manner in which detainees have been swept up, often on flimsy evidentiary bases, is pregnant with abuses. It still does not follow that detainees are entitled to all of the rights and privileges that Americans should receive in a criminal proceeding.
Morning's Minion's statements on natural law, however, do reveal one of the implications of the Court's finding: the specter of universal jurisdiction, in the sense that, as all men possess certain rights under the natural law, all men must be entitled to the same basic set of legal privileges and procedures, without respect to such irrelevant natural facts as "what passport you hold." This may appear to be just another sort of utopian universalism, though it is freighted with practical consequences: such legal harmonization or standardization is not an independent project, but is ultimately productive of other forms of integration. It is richly suggestive that, in the age of universalist pretensions, both the Bush administration and its opponents wish to collapse the distinction between citizens and non-citizens, and this view of the law comports nicely with this hostility towards the nation, without which citizenship is meaningless.
The second implication may be stated in brief: the Court has, whether by intention or merely tacitly, fired a shot across the bow of all those who might contemplate reining in its most egregious excesses, by jurisdiction-stripping and defiance: such endeavours will be regarded as unconstitutional, as violations of the fundamental law, the actual text notwithstanding. It should not be doubted that this precedent will both be invoked in the future, and exercise a chilling effect on the discourse of a dying republic. And such a nation will not have a legislature; it will have a Politboro.