Running Out the Clock

It is naturally gratifying to see the Supreme Court spitting in the eye of the Global War on Law – uh, Terror waged by our president and his lawyers. Boumediene v. Bush, decided June 12, takes out another pillar of legal support for Guantanamo: the denial of habeas corpus review. One suspects that the peroration will often be quoted in years to come: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled, and in our system they are reconciled within the framework of law.” Yet one cannot avoid a sense of melancholy reading it. Boumediene comes at some cost, and to little likely effect.

Guantanamo was conceived as a law-free zone. Thought to be secure against judicial review because of its extraterritoriality and because its inmates were non-citizens and alleged enemy combatants, and firewalled from effective Congressional oversight by the constitutional prerogatives and political power of the presidency, Guantanamo was supposed to be a place where military and intelligence personnel could detain, degrade and waterboard literally unchecked.

The Administration correctly sized up congressional weakness, but has not had matters all its own way with the judiciary. To judge by the box score of Supreme Court rulings, it would seem that by now there should have been a new day at Guantanamo Bay. In Hamdi v. Rumsfeld, 542 U.S. 407 (2004), Rasul v. Bush, 542 U.S. 466 (2004), and Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the Court, with a rising sense of exasperation, asserted the detainees’ right to real due process and the concomitant power of the courts to review claims that such due process had been denied. But each case could deal only with a small piece of the huge tapestry of statutory, treaty, constitutional, and administrative law woven by the administration and by Congress, and only with cases in the procedural posture presented to the Court. And in adhering to established standards of justiciability and deference while addressing these cases , the Court has tried to abstain from overly involving itself in Executive Branch policy-making.

As a result, the lawyers have stayed busy, new forms of kangaroo administrative tribunals have been substituted for old ones, and little else seems to have changed over six long years. Although accurate and comprehensive information is scarce, the overall picture seems to be that detainees are released when the authorities think fit, and not before. It is far from clear that the Court has hastened the release or ameliorated the condition of a single detainee.

The Boumediene majority takes this history into account. There is an unmistakable escalation of tone and impatience in Justice Kennedy’s opinion. By now the Court has obviously come to a fuller appreciation of what happens when it seeks carefully to address only the issues presented, squared off against an administration whose contempt for American constitutional values and determination not to conform to them is not merely unrelenting, but also creative and prolific. The Court has discovered that this administration can build and repair the legal fence around its atrocities a lot faster than the Court can tear the fence down.

The dissents, by Chief Justice Roberts and Justice Scalia correctly taunt the majority over its impotence actually to improve the lives and fates of the inmates. Indeed, they issue two taunts, each of which is worth considering.

The first has to do with the majority’s treatment of precedent. The administration’s internal legal memoranda justifying Guantanamo rested heavily on certain World War II Supreme Court decisions, some involving the internment of Japanese Americans, some the trial of German spies and soldiers by military commissions at home and abroad. Many of the implications of those rulings, fairly considered, probably would confirm the constitutionality of Guantanamo. But our constitutional culture has evolved, thank goodness, since those days. It bears note, for instance, that Fred Korematsu, defendant in one of the internment cases, received not only a writ of coram nobis in 1984 vacating his 1944 conviction (unopposed by the government), but in 1998 President Clinton placed a Presidential Medal of Freedom around his neck. The order granting the writ specifically noted that the Supreme Court ruling affirming his conviction technically remained precedential, but no one could seriously maintain that Korematsu’s ruling or the ones that accompanied it, fueled by wartime hysteria, would ever be reached today. The Court would not expand war powers simply to ratify acts of that particular sort of racism and tribalism now.

Justice Scalia nonetheless scalds the majority for failing to come to terms with the implications of those wartime rulings and following them as binding precedent. And to be fair, he may well be accurate as to what they say. In particular, Johnson v. Eisentrager, 339 U.S. 763 (1950) (German soldiers who fought on after surrender tried by military commission in Germany) probably should be interpreted as Scalia says. Kennedy and the Boumediene majority purport to see a far more liberal approach hinted at in Eisentrager than Scalia does. But Scalia seems accurate in his reading.

So one problem with Boumediene is that the bad law from World War II is not recognized as such and repudiated, as it should be. Of course, far better to interpret away its worst features, and get on with recognizing that enormities like the establishment of Guantanamo and its kangaroo tribunals cannot escape judicial review while we still profess to have a government of checks and balances and American values of due process. Scalia’s fault, by contrast, is in clinging to the wreckage of the disgusting and racist World War II precedents; but then, Scalia has few alternatives in other jurisprudence to support the presidential absolutism he so admires.

The other criticism is more troubling. No one, says Scalia, gets out of Guantanamo quicker as a result of this opinion. The new system of review the Court mandates will at least sometimes need to start with fresh administrative procedures, followed by a visit to District Court, followed, doubtless, by appeals to the D.C. Circuit. Had the old procedure been followed, the procedures would have started in the D.C. Circuit. Scalia slides past what would have happened there without Boumediene: review of Guantanamo tribunals conducted with the utmost deference. And when you start deferring to decisions in which the defendant cannot be represented by counsel and has no meaningful subpoena power, and his liberty may depend upon hearsay and upon witnesses and documents he may never view or confront, deference becomes surrender to tyranny. After Boumediene the scrutiny will be tougher. But Scalia is right that the process may take much longer.

What Scalia does not come out and say, but everyone knows, is that, because of the timelines built into the Supreme Court’s rerouting of these cases, there is no great likelihood of freedom for the remaining Guantanamo inmates before the administration chooses to release them or the political process does so. George Bush and Dick Cheney have effectively run out the clock. Whatever judicial or statutory wreckage they leave behind them, whatever constitutional principles may now limit their successors, it will only be just words as far as they personally and their detainee gulag on their watch are concerned. They will have taken these purported enemy fighters off the street and held them just as planned. Everything the Supreme Court has practically accomplished amounts, so far as the Bush administration is concerned, to rearrangement of the deck chairs on the Titanic.

The reckoning must be political, not judicial. If the Supreme Court is smart, it will devise some more rapid way of responding to Guantanamos before the next one arrives. It had better. Given the American proclivity for lurching occasionally toward totalitarianism, we know this much: It will arrive.