Kenneth Anderson, law professor at the Washington College of Law, American University, is also a member of the Hoover Institution Task Force on National Security and Law. He writes about the Boumediene decision here:
Supreme Court Flexes Its Muscles in Boumediene Decision. Read the whole thing.
…Habeas at Guantanamo affirmed in principle. But developing actual standards for individual cases — what the specific rights of detainees are and how they should be weighed against real-world security concerns — was handed off to the myriad federal district courts. The Court offered no glimmer of what it thought actual, workable principles should be. It is evident that Justice Kennedy has no idea; he simply believes that district courts will be better and, perhaps, have greater legitimacy at it – particularly in the world of global judicial elites in Europe in which Justice Kennedy basks – than the American people’s elected representatives.
On June 12th, I called this SCOTUS Europhilia an example of “…the insidious weakness of Western Civilization’s leftist guilt-quest for cultural self-esteem,” contending (in the comments) that, “the motivation arises from cultural guilt parallel to the Shelby Steele model: It has far more to do with the moral redemption of the 5 Justices than with the law…” The long link above is from Professor Anderson’s original article and it links to an article in The New Yorker magazine subtitled, How Anthony Kennedy’s passion for foreign law could change the Supreme Court. It was written in 2005. It didn’t take very long to come to pass. For anyone who’s been hanging out with Ted Kaczynski for the last 40 years, I’ll mention that The New Yorker is a “progressive” magazine. They approve of Kennedy’s sycophancy.
Here’s more from Professor Anderson:
…Prior to Boumediene, I would have said that the Court’s main concern has been that the war on terror is not “war” in the traditional sense, operationally or legally, and that just because the political branches call something war does not mean it actually is war, at least not if a consequence is the executive’s ability to detain anyone — which is where the administration started out, back with Jose Padilla, a U.S. citizen — as any enemy combatant solely on its say-so. If habeas did not apply to that claim of executive power, what was it good for? It is a fair question, but one that, as the chief justice noted in his dissent, is covered not just for citizens but even for aliens, by the MCA and DTA. Why the need to go beyond those? After Boumediene, it would seem to matter only if you see this as part of a larger project to carry the Constitution abroad, insofar as American agents and military act beyond U.S. borders, and to transform warfare into a species of large-scale law enforcement. If you are required to collect and preserve evidence in order to be able to hold alien security detainees picked up in foreign war zones, after all, war has become a very different activity.
Emphasis mine, because I agree with it. As I pointed out to an anonymous Ontarian in comments to that June 12th post, “You consider that laws of the United States ought to apply to foreign nationals on foreign soil. I can’t help but remember chief CHRC [Ironically, that’s the Canadian Human Rights Commission.] investigator Dean Steacy’s comment that, “Freedom of speech is an American concept, so I don’t give it any value.””
We can’t even export the responsibilities of American law to Canada in defense of its own Charter of Rights, but “enlightened” Canadians think we should be Mirandizing Osama bin Laden (as do Barack Obama’s advisors), Disagree and it means you’d like to see the Constitution “ripped up”. Thanks, but Anthony Kennedy is already on that job.
…Justice Kennedy is a human rights universalist — habeas corpus for aliens as for citizens, contrary precedents like Eisentrager be damned. And yet Afghan and Iraqi lives apparently are at a steep discount in the Boumediene majority’s weird, morally preening settling of accounts between liberties and security; so too, eventually, are American lives.
The obvious problem with exporting American Constitutional rights to foreign nationals is that we have no way to require any of the cultural behavior expected to be associated with having those rights. I wasn’t joking about Mirandizing terrorists, it is a straight line to that from believing habeas rights are due to POWs or enemy combatants on foreign soil. The only appreciation shown by those who respect neither habeas nor free speech is likely to be glee in killing more people who disagree with them.
I understand the objection: “You can’t just lock people up forever without lawyers because George Bush says so!” And I agree, but this is not at issue. How did this case come before the Supreme Court if Lakhdar Boumediene was denied a lawyer? Answer: He wasn’t. Access to lawyers, and to the Circuit Court of the District of Columbia, was part of the procedure to which Congress and the President jointly agreed, at SCOTUS’ direction. SCOTUS then found these protections inadequate on grounds it needn’t even have considered in this case. It was, indeed, a sad day.
See also, for more links to commentary on this decision.