Gitmo Goes to Court

The judiciary has no business managing how we fight wars abroad.

By David B. Rivkin Jr. and Lee A. Casey
Thursday, December 6, 2007 12:01 a.m.

The Supreme Court heard a spirited argument yesterday on whether foreign enemies, captured and held overseas, are entitled to the protections of the United States Constitution. Since the founding of our republic, the answer to that question has always been an unequivocal "No."

If, after hearing Boumedienne v. Bush, the court makes up new rules, it will mark an unprecedented expansion of judicial power into areas--the conduct of foreign affairs and war making--the Constitution reserves to the president and Congress, the elected representatives of the American people. The Boumedienne case is as much about the Supreme Court's willingness to constrain its own power as it is about detainee rights.

This latest challenge to the Bush administration's war policies was brought by enemy combatants held at the Guantanamo Bay Naval Station, who claim the right to a habeas corpus hearing--to determine the legality of their detention--before the federal courts. Congress attempted to foreclose such claims in 2005, when it passed the Detainee Treatment Act (DTA), creating an elaborate administrative process through which detainees can contest their classification as "enemy combatants," with an appeal to the U.S. Court of Appeals in Washington, D.C., and the Supreme Court. All other federal court jurisdiction was withdrawn at that time.

Nevertheless, because the Supreme Court wanted to clarify that the new system applied to pending, as well as future, cases, the court permitted these challenges to go forward in its 2006 decision in Hamdan v. Rumsfeld. Congress responded immediately, passing the Military Commissions Act (MCA) and overruling Hamdan.


The MCA established a system of military tribunals to try the Guantanamo detainees, again with appeals to the U.S. Court of Appeals in Washington, D.C., and the Supreme Court. The law also stated with remarkable clarity that these procedures excluded all other judicial review for detainee claims, past, present and future. As one judge wrote in dismissing Mr. Boumedienne's case after the MCA was enacted--"it is almost as if the [congressional] proponents of these words were slamming their fists on the table shouting 'When we say 'all,' we mean all--without exception.'"

Last April, the Supreme Court appeared to agree, refusing to revive the appeals. Unfortunately, it changed its mind in June, agreeing to consider whether Congress can constitutionally refuse the Guantanamo detainees--who are not U.S. citizens or held on U.S. territory--access to habeas corpus rights. This is not a close question. When the framers adopted the Constitution to "secure the Blessings of Liberty to ourselves and our Posterity" they were not talking about enemy aliens overseas engaged in a war against the republic they founded.

That, certainly, was the Supreme Court's conclusion in Johnson v. Eisentrager (1950), which involved similar claims by Germans arrested by U.S. forces in China, and then imprisoned in occupied Germany. Their habeas claims were rightly rebuffed.

As Justice Robert Jackson wrote for the court, "Such extraterritorial application of organic law [the Constitution] would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment." Such a rule would, indeed, have been bizarre--handicapping the U.S. in its foreign relations and putting it at a permanent disadvantage compared to every other country on earth.

That was true in 1950, and it remains true today. To grant constitutional rights to the Guantanamo detainees, the Supreme Court must ignore its own settled precedent--on which the president and Congress were entitled to rely--and rewrite the Constitution itself.

The consequences would be disastrous. Such a decision would bring judges to the battlefield. As Justice Jackson warned, permitting foreign enemies to haul American officials into court "would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home."

Because the Constitution does not apply to foreigners overseas, the procedural rights accorded to the Guantanamo detainees are a matter exclusively for the political branches. Subjecting them to constitutional scrutiny would overstep the judiciary's legitimate power, making it the ultimate arbiter of U.S. foreign policy. Moreover, if the court were to grant constitutionally based habeas rights to aliens overseas, there is no principled means of avoiding extension of the entire Constitution anywhere in the world where U.S. forces (or officials) may go.

For the first time in American history, an entire panoply of the federal government's overseas actions directed at foreigners, including surveillance and even use of deadly force, would become subject to constitutional strictures. This would transform the U.S. into a Gulliver, bound by its own judicial strings, on the international stage.

The Constitution grants the Supreme Court a limited original jurisdiction, and leaves Congress free to define its appellate authority and the judicial power of the lower federal courts. Here, Congress has determined that detainees will have certain administrative means of challenging their detention, and a review by the D.C. Circuit and Supreme Court. That is all Congress deemed appropriate here--and, needless to say, this is more than other captured enemy combatants have received in the past.


Even if habeas corpus applied--and there is no precedent for its application (either in British or American practice) to foreigners held overseas--the processes established by Congress in the DTA and MCA would constitute an adequate substitute. The Supreme Court has long recognized that, even with respect to Americans held in the U.S., habeas review is limited in scope. If focuses on questions of law rather than a detailed analysis of the factual record. Many different procedures are sufficient to meet any constitutional habeas requirement.

In these cases, the factual inquiry detainees are accorded under the Pentagon's "combatant status review tribunals" are an adequate substitute for habeas. They are modeled on the review legitimate prisoners of war would receive under the Geneva Conventions in accordance with the Supreme Court's 2004 decision in Hamdi v. Rumsfeld, and linked with the right of appeal to the D.C. Circuit and Supreme Court on procedural and constitutional standards. This fact alone is more than sufficient for the court to uphold the MCA, without ever reaching the underlying constitutional issues involved. Justice Anthony Kennedy--a potential decisive vote in this case--seemed sympathetic to this argument.

After years of public debate, with many of the key issues playing a prominent role in the presidential and congressional elections, Congress and the president have created a system that allows enemy combatants to challenge their detention, and to achieve a limited judicial review in U.S. courts. This is sufficient. The Supreme Court should not reject the law merely because it might disagree with the policy results adopted by the elected branches of government.

The court has already meddled more in this area in the last several years than in all of prior history. It has no right to demand more.