Who Wants to Be an Enemy Combatant?

The Supreme Court ruled in Boumediene v. Bush thatcombination of argumentum ad absurdum and
the writ of habeas corpus applied to Guantanamoshameless demagogy, argued that the ruling may
Bay detainees. The case was the first extension ofeven result in American deaths.
habeas corpus - a legal tool to challenge the legalityBut Scalia's thundering hyperbole was belied by reality.
of one's imprisonment or detention - to aliensThe entire difficulty of America's new war is that our
detained on foreign soil. The decision was 5-4, and itenemy is not as clear cut as Scalia's litmus test of
quite riled the dissenting justices. Demonstrating theirreligious fervor. As William F. Buckley would remind
typical originalist belief that ancient legal doctrines canthe justice, "Terrorists were only yesterday engaged
never adapt to new circumstances, both Antoninin ordinary occupations...shocking friends and family
Scalia and Chief Justice John Roberts filedwhen they struck as terrorists."
cantankerous dissenting opinions.Such a fact is unique to the war on terrorism and
Both justices felt the foreign extension of the writ ofjustifies the novel extension of habeas to detentions
habeas was unnecessary because a) it never hadtherein. The problem is we're not at war with Islamist
been done before and b) Congress, in its infiniteextremists, really. We're at war with murderous
wisdom, enacted the Detainee Treatment Act thatterrorists - of whom most, but not all, happen to be
was supposed to do the same thing for thoseIslamist extremists. In fact, according to a recent
unfortunate souls in Gitmo.NYPD report, many of these Islamist extremists are
Even though the Detainee Treatment Act explicitlyAmericans. Clearly, terrorism is not confined to a
denied the application of habeas to Gitmo detainees,given nationality or religion.
the dissenters thought it was good enough becauseThe Arab world is filled with radical Islamists. But
it provided perfunctory oversight procedures as awe're not supposed to be killing and detaining all of
putative substitute. According to Justice Roberts,them; only the ones that try to kill Americans. The
since Congress is elected by people, Congress trieddetermination of murderous intent is essential to the
to give some review to Gitmo proceedings, andeffective prosecution of the war on terrorism. But
Congress passed the DTA with the noble intentionsbecause we want to severely punish terrorists - and
of keeping America safe, any judicial interferencerightly so - the high human cost makes the potential
with the DTA is really the denial of the will of thefor injustice that much greater.
people. It was a nice try for political theatre, butThe obvious difficulty of determining terrorists from
ill-reasoned as a matter of Constitutional law.other radical Muslims is the entire reason why habeas
Most importantly, there are important distinctionsis necessary to preserve the integrity and legitimacy
between the true writ and the habeas-lite providedof our legal system. The declaration of a human being
by the DTA. The DTA provided for limitedas an enemy combatant, subject to military detention
evidentiary review, but not for the introduction ofwithout legal protection, is not a decision that should
new evidence or other important aspects included inbe made without Constitutional limitations.
a habeas proceeding. The DTA only permitted aOne does not seek to limit our President's
court to review whether a detention comports withprosecution of our enemies; we only seek to ensure
the "standards and procedures specified by thehe is actually prosecuting our enemies.
Secretary of Defense" and whether those standardsScalia even unwittingly noted the idiocy of relying on
and procedures are lawful.the government to effectively decide whether a
But the point of habeas is not simply a question ofperson was a true combatant. In dissent, Scalia noted
whether the military comports with its ownthat certain detainees released by the military had
standards, or even a question whether thosealready returned to the battlefield, only to be
standards are legal in themselves. The writ of habeascaptured again. Scalia used this fact to argue that the
corpus is a question whether a specific detention iscourts should not interfere with such a clearly difficult
unjustified or unlawful.decision of whether a given detainee poses a threat
The writ of habeas is an iconic feature ofto national security.
Anglo-Saxon jurisprudence precisely for its evaluatingUnfortunately for Scalia, the logic persuades one
the justice of each detention. In the words of theotherwise. As the military has already admitted to
great Justice Oliver Wendell Holmes, habeas is not "areleasing combatants, its exceedingly likely that
static, narrow, formalistic remedy; its scope hasthey've also imprisoned non-combatants. And that's
grown to achieve its grand purpose." It "cuts throughthe whole point.
all forms and goes to the very tissue of theThe difficulty in determining who is an enemy
structure. It comes in from the outside, not incombatant in this 21st century war is exactly why
subordination to the proceedings, and although everywe need review of the clearly imperfect decisions of
form may have been preserved, opens the inquiryour military and Commander in Chief. The new
whether they have been more than an empty shell."battlefield is not static, its soldiers are not uniformed,
But even that grand purpose wasn't enough forand as I'm sure we'd all concede, neither Congress
Antonin Scalia. "America is at war with radicalnor George W. Bush is omniscient.
Islamists," the truculent justice sternly reminded us.Those are the reasons why habeas must apply to
Scalia argued that the Court's ruling would interfereGuantanamo detainees. Thankfully, the Court still got
with prosecution of said war, and in a stunningthe issue right.