H. Robert Baker: The Supreme Court Confronts History (Boumediene v. Bush)
[H. Robert Baker is assistant professor of history at Georgia State University and author of the book, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War.]
History matters. Perhaps more to the point, how we craft history matters, whether we are historians or not. The Supreme Court proved this on June 12 when it issued its decision in Boumediene v. Bush. The case concerns habeas corpus, latin for "have the body" (as in a command by a judge to a jailor to "have the body in my courtroom and explain why you are restraining him or her"). In Boumediene, the question at issue was whether the government could strip federal courts of jurisdiction to entertain prisoners’ applications for habeas corpus. The Court broke five to four against the government, ruling that Congress had exceeded its authority. The case is sure to be a landmark. Many books will be written about it, and generations of law students will debate its merits. It will also prove the old dictum that hard cases make bad law. The issues in Boumediene are legion and the technical complexity formidable. Reasonable people can violently disagree on the correct legal outcomes warranted by the facts of the case.
Which is why history matters so. Both Justice Anthony Kennedy’s majority opinion and Justice Antonin Scalia’s dissent turn to the past to justify their interpretations of habeas corpus. In doing so, they demonstrate just how immediate the past can be—but also just how divisive it remains. Choosing between the five justices in the majority and the four in the minority is, in essence, choosing between two very different histories.
A little should be said about the background of Boumediene v. Bush. The invasion of Afghanistan produced a number of prisoners of war who the administration styled "enemy combatants" and shipped off to Guantanamo Bay. Subsequent intelligence operations, without any necessary connection to the Afghan War and often conducted by American client states, produced more so-called enemy combatants who were also sent to Guantanamo. The legal challenges began almost immediately. In Hamdi v. Rumsfeld, decided in 2004, the Supreme Court ruled that the executive branch lacked authority to hold U.S. citizens indefinitely without a legal hearing. In Rasul v. Bush, decided in the same year, the Court ruled that statutory habeas corpus extended to Guantanamo Bay, despite the government’s claims that the prison was not located on U.S. soil and thus was outside the federal courts’ jurisdiction. Whatever the de jure claims Cuba might have to sovereignty at Guantanamo, no writ except the United States’ runs there. It follows, the Supreme Court concluded, that habeas runs there too.
Unless, of course, Congress suspended habeas corpus. The Constitution empowers only Congress to do so, and even that power is provisional. Article I, section 9, paragraph 2—known as the "Suspension Clause"—expressly forbids Congress from suspending habeas corpus "unless when in cases of rebellion or invasion the public safety may require it." In the wake of Hamdi and Rasul, however, Congress did not suspend habeas corpus. Rather, it passed in 2005 the Detainee Treatment Act, which established procedures for review of detainees’ status. In 2006, Congress passed the Military Commissions Act, which stripped federal courts of jurisdiction to consider detainees’ applications for habeas corpus on the grounds that detainees were enemy combatants and therefore under the jurisdiction of military tribunals. The Court’s majority opinion in Boumediene made this the threshold issue. Could Congress substitute military tribunals for civilian ones and effectively make an end run around the Suspension Clause?
No, said the Court, if only by the slimmest of margins. Justice Kennedy’s majority opinion stakes out special ground for habeas corpus, "one of the few safeguards of liberty specified in a Constitution that," Kennedy notes, "at the outset, had no Bill of Rights." If we were to rely on the text of the Constitution alone, Kennedy’s claim would be rather weak. The Suspension Clause does not grant an affirmative right to habeas corpus. It is housed in the same section in Article I that forbids Congress from, among other things, granting titles of nobility, preferring one state’s ports over another’s, and from meddling with the slave trade for twenty years. This is hardly the architectural design of a palisade for fundamental rights. Nonetheless, Kennedy stresses that the Suspension Clause should be regarded with special care by the courts. "In the system conceived by the Framers," Kennedy writes, "the writ [of habeas corpus] had a centrality that must inform proper interpretation of the Suspension Clause."...
Read entire article at Common-Place.org
History matters. Perhaps more to the point, how we craft history matters, whether we are historians or not. The Supreme Court proved this on June 12 when it issued its decision in Boumediene v. Bush. The case concerns habeas corpus, latin for "have the body" (as in a command by a judge to a jailor to "have the body in my courtroom and explain why you are restraining him or her"). In Boumediene, the question at issue was whether the government could strip federal courts of jurisdiction to entertain prisoners’ applications for habeas corpus. The Court broke five to four against the government, ruling that Congress had exceeded its authority. The case is sure to be a landmark. Many books will be written about it, and generations of law students will debate its merits. It will also prove the old dictum that hard cases make bad law. The issues in Boumediene are legion and the technical complexity formidable. Reasonable people can violently disagree on the correct legal outcomes warranted by the facts of the case.
Which is why history matters so. Both Justice Anthony Kennedy’s majority opinion and Justice Antonin Scalia’s dissent turn to the past to justify their interpretations of habeas corpus. In doing so, they demonstrate just how immediate the past can be—but also just how divisive it remains. Choosing between the five justices in the majority and the four in the minority is, in essence, choosing between two very different histories.
A little should be said about the background of Boumediene v. Bush. The invasion of Afghanistan produced a number of prisoners of war who the administration styled "enemy combatants" and shipped off to Guantanamo Bay. Subsequent intelligence operations, without any necessary connection to the Afghan War and often conducted by American client states, produced more so-called enemy combatants who were also sent to Guantanamo. The legal challenges began almost immediately. In Hamdi v. Rumsfeld, decided in 2004, the Supreme Court ruled that the executive branch lacked authority to hold U.S. citizens indefinitely without a legal hearing. In Rasul v. Bush, decided in the same year, the Court ruled that statutory habeas corpus extended to Guantanamo Bay, despite the government’s claims that the prison was not located on U.S. soil and thus was outside the federal courts’ jurisdiction. Whatever the de jure claims Cuba might have to sovereignty at Guantanamo, no writ except the United States’ runs there. It follows, the Supreme Court concluded, that habeas runs there too.
Unless, of course, Congress suspended habeas corpus. The Constitution empowers only Congress to do so, and even that power is provisional. Article I, section 9, paragraph 2—known as the "Suspension Clause"—expressly forbids Congress from suspending habeas corpus "unless when in cases of rebellion or invasion the public safety may require it." In the wake of Hamdi and Rasul, however, Congress did not suspend habeas corpus. Rather, it passed in 2005 the Detainee Treatment Act, which established procedures for review of detainees’ status. In 2006, Congress passed the Military Commissions Act, which stripped federal courts of jurisdiction to consider detainees’ applications for habeas corpus on the grounds that detainees were enemy combatants and therefore under the jurisdiction of military tribunals. The Court’s majority opinion in Boumediene made this the threshold issue. Could Congress substitute military tribunals for civilian ones and effectively make an end run around the Suspension Clause?
No, said the Court, if only by the slimmest of margins. Justice Kennedy’s majority opinion stakes out special ground for habeas corpus, "one of the few safeguards of liberty specified in a Constitution that," Kennedy notes, "at the outset, had no Bill of Rights." If we were to rely on the text of the Constitution alone, Kennedy’s claim would be rather weak. The Suspension Clause does not grant an affirmative right to habeas corpus. It is housed in the same section in Article I that forbids Congress from, among other things, granting titles of nobility, preferring one state’s ports over another’s, and from meddling with the slave trade for twenty years. This is hardly the architectural design of a palisade for fundamental rights. Nonetheless, Kennedy stresses that the Suspension Clause should be regarded with special care by the courts. "In the system conceived by the Framers," Kennedy writes, "the writ [of habeas corpus] had a centrality that must inform proper interpretation of the Suspension Clause."...