Last Thursday saw another major national security decision from the Supreme Court, which once again refused to legitimize the Bush administration's arbitrary detentions of persons asserted to be "enemy combatants." The Court held 5-4 in Boumediene v. Bush that 1) the de facto American sovereignty over Guantanamo means that constitutional constraints apply to the government, and 2)the proceedings established by Congress in the Detainee Treatment Act of 2005 are not adequate substitutes for the habeas corpus remedy required by the Constitution.
For reasons Jonathan Hafetz compellingly explained for the Prospect last year, the decision is a just one. Rather than add to the surfeit of fine analysis by observers such as Dahlia Lithwick and Marty Lederman, it's worth identifying three important implications of the Court's decision going forward:
1. There Is Little Substantive Difference Among the Court's Conservatives.
George W. Bush's two appointees write opinions with a different tone than the two most conservative members of the Court they joined. Chief Justice Roberts and Justice Samuel Alito rarely use the acerbic rhetoric of Justice Antonin Scalia or advance the ambitious grand constitutional theories found in the concurrences and dissents of Justice Clarence Thomas. These stylistic differences have caused some observers to claim that Roberts and Alito are more moderate and will be more likely to ally with liberals than Scalia and Thomas. Boumediene, however, is the latest example of the fact that there is very little substantive difference between the Court's four most conservative members.
Roberts and Alito are, in fact, doctrinaire conservatives, not moderate conservatives like Kennedy (who wrote the opinion of the Court in Boumediene.) The fact that the newer justices write in a more reasonable-sounding manner, and are less likely to advocate explicitly overruling liberal precedents they refuse to apply, should not obscure this reality. If anything, their lack of interest in broad legal theories makes Roberts and Alito more predictably conservative than Scalia and Thomas. (It is impossible to imagine either Roberts or Alito writing Scalia's dissent strongly arguing for the preservation of habeas rights for American citizens in Hamdi v. Rumsfeld.)
2. It Is Not Just About Roe.
The razor-thin margin of the majority opinion and the fact that John McCain has named Roberts and Alito as models for the kinds of justices that he would appoint should remind progressives about the extremely high stakes of the upcoming election for the future of the Supreme Court. Consider the members of the liberal majority.
Justice Stevens, the heart of the Court's liberal bloc whose masterful strategic use of the certiorari process was crucial to the outcome in Boumediene, is 88. Ruth Bader Ginsburg is 75. David Souter is 68, but by all accounts dislikes Washington, D.C. and would be very content with a life after the Court. The next president could reshape the Court for a generation or more, and as this sequence of executive power cases reminds us, Roe v. Wade is far from the only area of law in which treasured constitutional protections are hanging by a thread. Questions of executive power will be very important in the coming years, and it's hard to imagine the uber-hawk "national greatness" conservative John McCain appointing justices less solicitous of broad executive power than the four Boumediene dissenters.
3. We Need a Positive Progressive Case For Enforcing Constitutional Checks on Executive Power.
The first section of Justice Scalia's dissent contains a screed that seems more likely to have come from an O'Reilly Factor transcript than from a Supreme Court opinion in a landmark case. "The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief," Scalia asserts, "will make the war harder on us. It will almost certainly cause more Americans to be killed." Although unconvincing as legal analysis, Scalia's demagoguery does make clear the political problem faced by progressives. If Kennedy's careful, modest opinion can be successfully portrayed as a threat to national security, it will be difficult for not only the courts, but Congress, to place meaningful restraints on executive power. A judicial ratification of the broad powers claimed by the administration to detain, without charges or other meaningful review, a class of persons defined by presidential fiat (which this administration claims can include American citizens) would be disastrous. And, while it's true that Congress (prodded by the Court) did in this case enable the Bush administration'
For this reason, it is important for progressives not to approach arguments like Scalia's from a defensive crouch. In particular, there is no reason for progressives to accept the argument that there is a zero-sum tradeoff between reasonable protections of civil liberties and national security. Especially when one considers opportunity costs, there is, in fact, little security value in arbitrarily detaining people against whom the government lacks evidence. As Stephen Holmes has argued in his book The Matador's Cape: America's Reckless Response to Terror, the Bush administration's aggrandizements of executive power (and Congress' unwillingness to properly exercise its restraining and oversight functions) have undermined national security rather than preserved it. Long-term arbitrary detentions are bad for both civil liberties and the security of the American public, and it's crucial for liberals not to concede the latter half of the equation.
Which is why this decision should be welcomed, even if a more competent and responsible Obama administration takes office in 2009. If the Bush administration has demonstrated anything, it's that the value of secrecy, concentrations of power, and rash, arbitrary executive decision-making are overrated. Liberal democracy is a better system of government than more authoritarian alternatives for a reason, and there's no reason to believe that this isn't true for national security as well. Ensuring that the executive is subject to reasonable constraints will provide better protection to the American people in the long run.
