Boumediene--and Andy Jackson

Volokh:

In Boumediene, the Court challenges congressional power as well as the executive. It strikes down as unconstitutional several provisions of the Detainee Treatment Act of 2005 and the MCA. This is a nearly unprecedented situation where the Court rejected an important assertion of wartime power backed by both of the other branches of government. To my knowledge, virtually every previous case in which the Court ruled an important wartime policy unconstitutional was one where the policy in question was adopted by the executive acting alone.

In fact, the summary of the decision presents language which is almost combative in its slap at Congress' enactment of MCA. It was as though the Court had extended its middle finger, albeit in rather elegant language. A silk-gloved middle finger, so to speak.

The difficult question is whether habeas corpus applies to enemy combatants seized in operations abroad (I don't doubt that the Bush Administration was wrong to assert that it doesn't apply to US citizens accused of terrorist acts and captured in the US).

In another venue I had had some lengthy discussions with a friend who is an attorney. He adamantly defended the expansive 14th interpretation which allowed for "anchor babies." This decision also cites the 14th--I suspect in the same general vein.

But it is impossible to understand, except through the lens of mental disease or defect, how the Court arrives at the conclusion that habeas applies to enemy combatants who are NOT held in the US or its territories (or, for that matter, to unlawful combatants--that is, people who attack US troops, or the US, without a formal State sponsor; people who are NOT part of an organized army.) Kennedy admits as much:

...the lack of a precedent on point is no barrier to our holding

Uh-huh.

Roberts, in dissent:

One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of
federal policy regarding enemy combatants

...which, in the Court's exalted opinion, belongs to the Courts:


The Court does eventually get around to asking whether review under the DTA is, as the Court frames it, an “adequate substitute” for habeas, ante, at 42, but even then its opinion fails to determine what rights the detainees possess and whether the DTA system satisfies them. The
majority instead compares the undefined DTA process to an equally undefined habeas right—one that is to be given shape only in the future by district courts on a case-by-case basis.

The recipe used by Screechin'Shirley to determine rights to self-defense, by the way...

Scalia, to my point on 'who GETS Constitutional rights':


Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.

...
My problem with today’s opinion is more fundamental still: The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires

And Scalia cites--guess who? SCOTUS, no less:


“We are cited to [sic] no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.”

...
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

Ah, well.

Were Bush equipped with the necessary cojones, he would quote Andy Jackson: "So the Court rules. Let the Court enforce it."