Legal Commentary

If one peruses various of the comment threads to posts about the Supreme Court's decision last Thursday in Boumediene (see, for example, the comments to this post or to this one), one finds a similar criticism of Justice Kennedy's opinion repeatedly echoed in various places -- that "foreign enemy combatants" are not part of "We the People," and so therefore are undeserving of constitutional protections (including access to the writ of habeas corpus). I suspect that most -- if not all -- of the comments are actually by the same person, but whether they are or not is, ultimately, beside the point.

Instead, what has really gotten to me, and what I wanted to write about, is when/how we, as a legal community, forgot about the significance of process. The commenter(s) repeatedly assert(s) that it is "clear" that the detainees are bad guys, and that the process provided by the Military Commissions Act and the Detainee Treatment Act is more than adequate to assuage any fairness concerns.

The problem, as Kennedy's majority opinion recounts fairly forcefully, is that there is no meaningful chance to contest the government's allegations in the DTA/MCA process. Consider this passage, from page 61 of the opinion:

One of the petitioners, Mohamed Nechla, requested at his CSRT hearing that the Government contact his employer. The petitioner claimed the employer would corroborate Nechla?s contention he had no affiliation with al Qaeda. Although the CSRT determined this testimony would be relevant, it also found the witness was not reasonably available to testify at the time of the hearing. Petitioner?s counsel, however, now represents the witness is available to be heard. If a detainee can present reasonably available evidence demonstrating there is no basis for his continued detention, he must have the opportunity to present this evidence to a habeas corpus court. Even under the Court of Appeals? generous construction of the DTA, however, the evidence identified by Nechla would be inadmissible in a DTA review proceeding. The role of an Article III court in the exercise of its habeas corpus function cannot be circumscribed in this manner.

So here's my question: Whatever happened to the significance of process?

Why are so many of the critics of Boumediene "convinced" that the detainees are "evildoers," notwithstanding the well-documented defects in the process provided by the DTA and MCA? Haven't we learned the hard way, too many times, that arbitrary governmental decisions have an incredibly high risk of error? Perhaps most simply, what of Justice Frankfurter's famous maxim that ""the history of liberty has largely been the history of observance of procedural safeguards." Granted, many of the detainees were picked up by the U.S. military "on the battlefield," in the midst of combat operations against our soliders. But just as many weren't, including Boumediene himself. And it's important to keep that in mind...

I recognize, as I must, that reasonable people will disagree on the ultimate merits questions in these cases -- on whether individuals affiliated with al Qaeda can be held indefinitely, or potentially tried by military commissions, etc. But doesn't all of this depend on at least some faith that the individuals in question are in fact who the government says they are? If the answer is "yes," why be so upset at a Supreme Court decision giving the detainees a reasonable opportunity to contest that allegation? if the answer is "no," then what, other than the good graces of the Executive Branch, keeps us from being next?

Postscript: Apropos the above, and the importance of process to separate the innocent from the guilty, consider this McClatchy story posted today...