Despite the government’s limited win in Hamdi, the Supreme Court reminded the president that his oath to defend the Constitution required him to obey the rule of law — even in an age of terror. Then-justice Sandra Day O’Connor suggested in Hamdi some ways in which the high court was prepared to meet the government half way, if it otherwise played by the rules. It might, for instance, permit hearsay evidence and a limited “presumption in favor of the Government’s evidence” — wholly inadequate procedures by the standards of modern criminal law, but perhaps adequate, it said, for enemy-combatant hearings held in the heat of war, not always at convenient times or locales.
The president arrogantly rejected that olive-branch compromise, and Congress shamefully bought the president’s extreme position, enacting the Detainee Treatment Act (DTA) in 2005 and the Military Commissions Act (MCA) in 2006. Those laws, respectively, effectively eviscerated fair procedures for reviewing the government’s “enemy combatant” designation, and replaced the normal habeas process that allowed federal trial courts to hold judicial-review hearings. Instead, that process was moved to a federal appeals court, which could do no more than determine whether the military had followed the rules set out by the president, not whether the hearings granted basic fairness.
The legislative and executive branches took the position that these laws’ provisions satisfied even the Supreme Court’s watered-down requirements of justice, but just in case they didn’t, the DTA and MCA limited detainees’ access to the courts, to the point where the prisoners were essentially stripped of their writs of habeas corpus and enemy-combatant hearings were sheltered from judicial review. This set up a monumental historic clash in which the Supreme Court was faced with the question of whether it would take on a megalomaniacal White House and a supine Congress in order to rescue that fundamental right.
Back from the brink of disaster
Before the Supreme Court’s decision this past week in Boumediene v. Bush — a writ of habeas corpus filed by or on behalf of Lakhdar Boumediene, a Bosnian held in Guantánamo, challenging his detention there — it appeared possible that the façade of fair, or at least adequate, procedure promoted by the administration and Congress would fool or intimidate the Supreme Court into taking a hands-off approach. But instead, moderate-conservative justice Anthony Kennedy and the four moderate-liberal justices saved our republican form of government from becoming a quaint fixture in a Franz Kafka novel. Specifically, the high court determined that Guantánamo detainees were entitled to either habeas or an “adequate and effective substitute;” that the DTA process was not such a substitute; and that the relevant part of the MCA, which relied on that process and denied habeas rights, was therefore unconstitutional.
That was the right outcome, from both pragmatic and constitutional standpoints. The Bush administration’s claims of unfettered executive authority were what caused the house of cards to collapse. Had Bush tempered his power grab, agreeing to the court’s middle-road approach, he might have solidified his presidential power to detain suspected terrorists, with few truly meaningful limitations. Ironically, this maximalist theory of executive power forced the Supreme Court to return to a more basic defense of the writ of habeas corpus. The tinkering around the edges seems to be over.
