Detainees 3, Bush 0; Also, I <3 David Souter

Huge news from SCOTUS today: the justices ruled 5-4 that Guantanamo detainees are entitled to "prompt habeas corpus hearings," holding §7 of the Military Commission Act unconstitutional. This is the THIRD rebuke that the Bush administration has received from the Court over the handling of enemy combatants. Asked about the ruling while making his final European tour, Bush said that he did not agree with the majority opinion and grudgingly stated that he would abide by the Court's ruling. I put aside my "work" work this morning in order to sift through the 130+ page behemoth of an opinion and here are my findings:

1) Justice Kennedy's majority opinion is a paean to the importance of habeas corpus. He offers a thorough historical exegesis of the writ to support the argument that only extraordinary circumstances allow for a justified invocation of the Constitution's Suspension Clause. The problem, he notes, is that the writ was never formally suspended— the Bush administration simply maintains that habeas does not apply to enemy combatants, and, in the event that it does, the Military Tribunals are an adequate proxy for protecting the detainees constitutional rights. Therefore, the majority in effect challenges the Bush administration to either invoke the Suspension Clause and deny everyone the right to habeas hearings on the grounds that the nation faces imminent wartime dangers, or acknowledge that habeas privileges apply to enemy combatants held in Guantanamo: the Suspension Clause "ensures that, except during periods of formal suspension, the judiciary will have a time tested device, the writ, to maintain the delicate balance of government that is itself the surest safeguard of liberty." As far as review is concerned, Kennedy writes that, "where a person is detained by executive order, rather than, say after being tried and convicted in court, the need for collateral review is most pressing." This is the crux of the detainee cases: there ability of detainees to bring evidence in their defense is limited, if not non-existent. The Military Tribunals are not an acceptable substitution for the minimum requirements of habeas precisely because they limit the detainees' ability to produce evidence and challenge their detentions. In one particularly well-written sentence Kennedy describes the court's position: "we do consider it uncontroversial that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law."

2) Over the weekend, I read "The Nine," Jeff Toobin's amazing book on the Supreme Court, and I now feel like I have some insider information about the justices' personalities (the book is kind of like US Weekly for SCOTUS nerds). That being said, it seems like Kennedy restrained himself in the Boumediene opinion. Whereas some of his other opinions are rife with flowery, abstract propositions about the fundamental nature of certain liberties, he sticks to a relatively concrete analysis of habeas. This approach allows the majority opinion to deflect some Scalia's originalist-grounded criticisms.

3) Here's why I love David Souter: in his concurrence, he emphasizes that the court is not playing politics but rather applying time-tested Constitutional principles in an effort to remedy the very real injustices that the Guantanamo detainees have endured: "Today's decision is no judicial victory, but an act of perserverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to the prisoners and to the Nation."

3) John Roberts is a smart man, and the first few lines of his dissent made me wonder if my liberal sympathies got the best of my reasoning. His principle line of attack is that the majority never answers the proper threshold question in this case: what rights do enemy combatants have? In particular, what due process rights apply to enemy combatants? Because I felt guilty about slacking off at work for two hours to read the majority and concurring opinions, I only got through the first couple paragraphs of Roberts's dissent. So what I'm about to offer is a very tentative answer to the two questions that he poses. First, it is implicit in Kennedy's opinion that enemy combatants are entitled to habeas privileges. There is precedent to support the applicability of habeas to foreign nationals captured abroad and held by the US military so this seems simple enough. Second, regarding due process, Roberts is mistaken about the priority of his threshold test. Procedural due process rights are typically invoked only after formal charges have been leveled as the parties begin the process of holding a trial. In these enemy combatant cases, however, the issue is rather whether or not a prisoner's detention may be legally justified. Before procedural due process can be invoked, the court must address the status of the detention. Roberts appears to confuse judicial hearings that assess the soundness of the indefinite detention with criminal trials. Again, this is a very cursory analysis, so I hope that some of my law school friends read this and weigh in.

More to come.