Legal Commentary

Lest you think there might possibly be precedents to support Boumediene, consider Justice Kennedy's admission: There aren't any!

By Beldar

Often it's very difficult for lay readers, or even insufficiently motivated lawyers, to figure out whether there really is or isn't strong precedent from prior cases to support a particular Supreme Court decision. The majority opinions almost always say, "Oh, yes, rest assured that this is just one more in a long, straight line of decisions; our result today was practically compelled by them, lest we violate the rules of stare decisis." The dissent typically quibbles over that assertion and argues that the prior precedents are being misread, or that others were more on point.

Not so with last week's decision in Boumediene v. Bush. You don't have to slog through the many dozens of pages of Justice Kennedy's torpid prose, nor even glance at either Chief Justice Roberts' or Justice Scalia's dissents, to find out just how much support this decision actually has in the prior case-law of the U.S. federal courts. Instead, consider this remarkable paragraph (at page 49 of the .pdf file; italics in original; boldface mine):

It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure [i.e., formal legal] sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding.

You could not possibly seek a more candid admission that Justice Kennedy is making up not just law, but constitutional law, out of thin air. And a more conspicuous or egregious example of "legislating from the bench" would be hard to imagine, particularly since this time, the Court is not only legislating itself, but sweeping aside as unconstitutional the legislation actually passed by Congress and signed by the President.

(If, nevertheless, you actually do go on to read the dissents ? and if you're wondering why Hermann Göering and his crew weren't permitted to assert their supposed Fourth or Fifth Amendment rights under the U.S. Constitution at Nuremberg ? you'll find that Justice Kennedy and the majority also disingenuously disregarded contrary precedent that is on point, most particularly Johnson v. Eisentrager, 339 U.S. 763 (1950), which quite sensibly held that such foreign nationals who acted, and were captured and tried, entirely on foreign soil, had no rights under the U.S. Constitution, and could not use habeas corpus to claim any.)

Full post as published by BeldarBlog on June 15, 2008 (boomark / email).