Scalia Was Right About Releasing Gitmo Detainees

by Prof. William A. Jacobson
Legal Insurrection
December 29, 2009

Reports indicate that two of the planners of the attempted airplane bombing over Detroit were released Gitmo detainees, Muhamad Attik al-Harbi and Said Ali Shari. Each of these detainees went through a military hearing system and were released in 2007.

At that time, the U.S. detention system was under attack throughout the U.S. court system, and there was intense pressure on the Bush administration to release detainees who were not considered a threat.

The pressure culminated in the U.S. Supreme Court decision in the Boumediene case, in June 2008, in which the Court, by a one vote margin, held that Gitmo detainees had a right to petition U.S. Courts for a writ of habeas corpus.

Justice Antonin Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, wrote a blistering dissent (beginning at page 110 of the opinion), which appears prophetic in light of the near-miss Christmas day bombing (emphasis mine):

Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war….

I shall devote most of what will be a lengthy opinion to the legal errors contained in the opinion of the Court. Contrary to my usual practice, however, I think it appropriate to begin with a description of the disastrous consequences of what the Court has done today….

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today….

These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified….

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of- powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager.

It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

The Nation will live to regret what the Court has done today. I dissent….

Needless to say, Scalia was raked over the coals by the pundits because of this dissent…

The article continues at LegalInsurrection.blogspot

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