Posted by
Andrews on Wednesday, June 18, 2008 2:02:52 PM
The basic problem of Boumedine is that it takes the question of detention from the military and place sit in the hands of the courts. The ruling says that the detainees have a right to petition for a writ of habeas corpus, but it never really says what standards shall be used to judge of the detention is valid. That is the reason we have been reading so many conflicting opinions, because the court only really offers up half a decision. It says that the administration does not have the right to deny writs of habeas corpus, but then never says what standard shall be used to determine whether a detainee is held under valid rules.
The other problem is that this ruling cannot logically be contained. As I argued before, if it applies to those detained as unlawful combatants without a formal declaration of war, why would it not apply to those held as prisoners of war in such a conflict? What is to prevent them from bringing a claim that they too are being unlawfully detained, and that they are not truly POWs but are simply civilians being falsely held by the military? And if this applies without a declaration of war, then why not with a declaration? The logic is the same.
So, in short, the court has taken onto itself the question of who the military can and cannot detain, yet has not told anyone what standards will be applied. However, as the court is now extending habeas corpus to those captured in combat, I would assume that whatever standard they apply will closely resemble the way we handle criminal defendants.
And that is the real problem. We cannot fight a war as if we were policing a city. Combat does not allow for the gathering of evidence and testimony to support a claim that the people we captured are really unlawful combatants or are valid POWs. We cannot be bothered with such things during combat. However, that seems to be what the court is proposing, though not explicitly.
Beyond that basic problem, there is the second question of whether or not the court even had a right to make this ruling. They claim that the Constitutional prohibition against suspending habeas corpus overrule Article III Section 2. It may be so. Then again, just because congress cannot suspend habeas corpus does not mean the court has a right to review. The fact that the court was explicitly precluded from reviewing appeals form these statutes seems to me to override all other concerns.
Which makes this ruling an unjustified violation of the system of checks and balances. The right of congress to limit the court's appellate jurisdiction is explicit and clear. It makes me doubt the reasoning of the entire decision that the court could not see this clear restriction.
So, to summarize, I still stand by what I have written. If we take this ruling at face value, the courts have taken upon themselves the right to decide who the military can and cannot detain during military conflicts, declared wars or otherwise. In addition, the court has declared that congress no longer has the ability to limit the court's jurisdiction under Article III Section 2.
For alternate take son this, check out the essay and comments on
this blog, as well as
this blog I cited previously. Both provide interesting perspectives.
POSTSCRIPT
Work has not allowed me the time to go through the decision in the detail I would wish. I will find some time shortly and make a more thorough reading, but unless I find something that contradicts my current understanding or some new topic of interest, I think this will be my final word on the matter for the moment. (I would like to spend more time on the dissent, as that suffered most form my lack of time.)