Inventing Rights Out Of Thin Air

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This column was written by Peter Wehner.

I have now read through the Supreme Court's decision, as well as the dissents, in Boumediene v. Bush, in which the Court held that foreign terrorism suspects held at Guantánamo Bay have constitutional rights to challenge their detention there in U.S. courts. In doing so, the Court, in Chief Justice Roberts's words, "strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

It's worth considering what needed to be done in order to achieve this outcome.

The Court decided that for the first time in American history, non-American enemy combatants detained abroad, in the course of an ongoing war, had a constitutional right to habeas corpus (a proceeding used to review the legality of a prisoner's confinement in criminal cases).

In order to confer habeas-corpus rights on unlawful enemy combatants, the Court - in an opinion written by Justice Anthony Kennedy - had to break from precedent, including the 1950 case Johnson v. Eisentrager, in which the Court ruled that non-citizen enemies had no access to U.S. courts in wartime and that when captured and imprisoned abroad, they had no right to a writ of habeas corpus in a U.S. court.

The Court's majority opinion includes a section in which Kennedy attempts to fundamentally reinterpret Eisentrager. The problem for the majority is that Eisentrager conclusively establishes the opposite of what the majority opinion held. In Justice Scalia's words:

Eisentrager thus held - held beyond any doubt - that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign…. [The majority opinion] is a sheer rewriting of the case.… By blatantly distorting Eisentrager, the Court avoids the difficulty of explaining why it should be overruled.
More broadly, and relevant to the Kennedy opinion, English common law has never held that the writ of habeas corpus extended beyond the sovereign territory of the Crown.

Among the practical effects of this ruling is that, according to Scalia
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… 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.

What Boumediene v. Bush is really all about, as Justice Roberts wrote, is control of federal policy regarding enemy combatants. That is another way of saying this case was about power - and Thursday's decision was a power grab.

And so it has come to this: The United States Supreme Court now routinely invents constitutional rights to support whatever social, political, and legal goals it deems desirable. It is so much easier to legislate from the bench than it is through the branches of government that were created by our Founders to do just that.

But if one is going to invent Constitutional rights out of thin air, it's worth asking: What moral universe do Justices Kennedy, Breyer, Ginsburg, Stephens, and Souter inhabit when they are willing to manufacture constitutional rights for unlawful enemy combatants who want to slit the throats and watch innocent Americans bleed and die while at the same time uphold manufactured constitutional rights that allow people to abort innocent unborn children?

What the Court decided Thursday was an intellectual, jurisprudential, and moral disgrace, and if John McCain is wise he'll make this decision a focal point of the presidential race.
By Jonathan Hafetz
Reprinted with permission from The Nation
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