I don’t have nearly the time and space here to do justice to today’s opinions on enemy combatants, starting with the decision in Boumediene v. Bush, extending habeas corpus to foreign nationals detained at Guantanamo (which I partially summarized over at RedState as it broke, before I had to stop to deal with a decision of the Court in which I was directly involved). I’d highly recommend the scathing dissents of Chief Justice Roberts, who explains why the Court should not have decided that the Congressionally enacted procedures provided to detainees were inadequate without either (1) seeing how those procedures worked in practice or (2) explaining in any detail how the procedures required by the Court would be different, and Justice Scalia, who explains why the Court got the basic question of the historical scope of habeas wrong and illustrates the lethal consequences of today’s decision.
But I’d like to highlight two points from today’s opinions that illustrate some unintended consequences, and why in the end they may not accomplish the results claimed for them. Specifically, today’s decisions will hasten the process of handing off detainees to foreign governments while protracting rather than accelerating the legal process for determining the status of detainees.
The first comes from the Court’s less-publicized unanimous decision today in Munaf v. Geren, which held that while habeas extends to U.S. citizens detained by the Multinational Force-Iraq, the writ cannot be used to prevent the U.S. from transferring U.S. citizen detainees to the Iraqi government if it has warrants for their arrest for, essentially, being enemy combatants:
Munaf and Omar are alleged to have committed hostile and warlike acts within the sovereign territory of Iraq during ongoing hostilities there. Pending their criminal prosecution for those offenses, Munaf and Omar are being held in Iraq by American forces operating pursuant to a U. N. Mandate and at the request of the Iraqi Government. Petitioners concede that Iraq has a sovereign right to prosecute them for alleged violations of its law. Yet they went to federal court seeking an order that would allow them to defeat precisely that sovereign authority. Habeas corpus does not require the United States to shelter such fugitives from the criminal justice system of the sovereign with authority to prosecute them.
(Presumably, the same rule would apply to non-citizens). This, despite the fact that the Iraqi justice system is obviously not precisely equivalent to our own in terms of procedural protections. The Court also rejected the idea that a U.S. court could prevent transfer of the prisoners based on their claim that they might be tortured by the Iraqis, although the Court did note that there was not a record of a likelihood of torture, and three Justices would have left the door open for courts to review “whether substantive due process bars the Government from consigning its own people to torture.”
What does this mean? Well, it means that detainees at Guantanamo could be transferred out of the reach of the new habeas process if the governments of Afghanistan, Iraq or other allies (some of whom have been known to swiftly behead such people upon their transfer) request that we do so. In other words, if the new procedures prove onerous in practice or run the risk of revealing classified information to our enemies, the unintended consequence of the decision to strike down procedures enacted by the U.S. Congress may be instead to substitute procedures provided by the Afghan or Iraqi governments. (Can you say, “rendition,” boys and girls? I knew you could!) Even five Justices of the U.S. Supreme Court cannot repeal the law of unintended consequences.
The second point, on the question of swift justice, is explained by the Chief Justice in Boumediene:
The Court is … concerned that requiring petitioners to pursue “DTA review before proceeding with their habeas corpus actions” could involve additional delay. …The nature of the habeas remedy the Court instructs lower courts to craft on remand, however, is far more unsettled than the process Congress provided in the DTA. See ante, at 69 (“[O]ur opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined”). There is no reason to suppose that review according to procedures the Federal Judiciary will design, case by case, will proceed any faster than the DTA process petitioners disdained.
On the contrary, the system the Court has launched (and directs lower courts to elaborate) promises to take longer. The Court assures us that before bringing their habeas petitions, detainees must usually complete the CSRT process…. Then they may seek review in federal district court. Either success or failure there will surely result in an appeal to the D. C. Circuit – exactly where judicial review starts under Congress’s system. The effect of the Court’s decision is to add additional layers of quite possibly redundant review. And because nobody knows how these new layers of “habeas” review will operate, or what new procedures they will require, their contours will undoubtedly be subject to fresh bouts of litigation. If the majority were truly concerned about delay, it would have required petitioners to use the DTA process that has been available to them for 2 1/2 years, with its Article III review in the D. C. Circuit. That system might well have provided petitioners all the relief to which they are entitled long before the Court’s newly installed habeas review could hope to do so.
Of course, the question as to whether additional delay is a bad thing depends on whose intentions are at stake. For a detainee who is actually improperly held in custoday, delay is a bad thing, because it means more time in Gitmo. But for those who are genuinely enemy combatants, more delay is wonderful – more ability to tie up U.S. personnel and resources in courtroom battles, more publicity for their “cause,” more grinding down of U.S. morale as expensive court proceedings drag on and provide political fodder for critics of the mission and the military. Like the exclusionary rule in criminal procedure (which excludes illegally seized evidence of guilt but gives no remedy to the innocent), the Court has managed to create a perverse system that burdens anyone who might actually be deserving of a remedy, while rewarding those who seek to game the system to the disadvantage of the nation. Gee, thanks.