Victory of Lawfare

I just read the entire Supreme Court 5-4 majority and minority opinions in the Boumediene case, whether detainees in Guatanamo are entitled to, in effect, ordinary civilian habeas corpus rights to challenge the justification for being held in custody or charged. This decision may be studied for a generation for its apparent conterpoise of principle vs. practicality. That’s so, but superficial. Deeper, the majority decision writes a new expansion into the Constitution, both of habeas corpus and of the supremacy of the judicial over the congressional and executive branches. If there’s a principle involved, it is the victory of lawfare as widely believed in the legal community over the traditional and proven rules of warfare and national survival.

The decision, all 134 pages, is available here, via the SCOTUS blog which offers a brief recap. The AP and NYTs offer their reports. National Review’s Corner offers its dissent, and raises an important question regarding McCain.

The arguments persuasive to the majority are that a strict interpretation of the Constitution only permits the suspension of habeas corpus in the event of domestic rebellion or invasion, and that Guantanamo is effectively under US jurisdiction. The dissents point out that the executive and Congress followed the Supreme Court’s prior ruling to provide a practical equivalent for the detainees at Guantanamo, and now the majority disregards its own ruling. Although the majority equivocates that a civilian court may give some deference to the practicalities of evidence and witness from the battlefield, the dissenters point out that places control over military exigencies and realities in the hands of militarily inexperienced and inexpert civilian judges. Justice Scalia is particularly scathing in describing the effect on our ability to wage war, especially against irregular foes. He, also, points out that the result may be to place more detainees in less hospitable holding countries than at Guantanamo, at least until a possible additional Supreme Court expansion of US habeas corpus rights worldwide.

That result would be most welcome by the international lawfare fraternity, ever anxious to increase its own power and reduce that of the US.

UPDATE: Follow-up posts:
In the Matter of George W. Bush v. the Constitution
Guantanamo Detainees Next Supreme Court Case