An Asshole on the Court

President Kennedy
June 13, 2008; Page A14

Supreme Court Justice Anthony Kennedy isn't known for his judicial modesty. But for sheer willfulness, yesterday's 5-4 majority opinion in Boumediene v. Bush may earn him a historic place among the likes of Harry Blackmun. In a stroke, he and four other unelected Justices have declared their war-making supremacy over both Congress and the White House.

Boumediene concerns habeas corpus – the right of Americans to challenge detention by the government. Justice Kennedy has now extended that right to non-American enemy combatants captured abroad trying to kill Americans in the war on terror. We can say with confident horror that more Americans are likely to die as a result.

An Algerian native, Lakhdar Boumediene was detained by U.S. troops in Bosnia in January 2002 and is currently held at Guantanamo Bay. The U.S. military heard the case for Boumediene's detention in 2004, and in the years since he has never appealed the finding that he is an enemy combatant, although he could under federal law. Instead, his lawyers asserted his "right" – as an alien held outside the United States – to a habeas hearing before a U.S. federal judge.

Justice Kennedy's opinion is remarkable in its sweeping disregard for the decisions of both political branches. In a pair of 2006 laws – the Detainee Treatment Act and the Military Commissions Act – Congress and the President had worked out painstaking and good-faith rules for handling enemy combatants during wartime. These rules came in response to previous Supreme Court decisions demanding such procedural care, and they are the most extensive ever granted to prisoners of war.

Yet as Justice Antonin Scalia notes in dissent, "Turns out" the same Justices "were just kidding." Mr. Kennedy now deems those efforts inadequate, based on only the most cursory analysis. As Chief Justice John Roberts makes clear in his dissent, the majority seems to dislike these procedures merely because a judge did not sanctify them. In their place, Justice Kennedy decrees that district court judges should derive their own ad hoc standards for judging habeas petitions. Make it up as you go!

Justice Kennedy declines even to consider what those standards should be, or how they would protect national security over classified information or the sources and methods that led to the detentions. Eventually, as the lower courts work their will amid endless litigation, perhaps President Kennedy will vouchsafe more details in some future case. In the meantime, the likelihood grows that our soldiers will prematurely release combatants who will kill more Americans.

To reach yesterday's decision, Justice Kennedy also had to dissemble about Justice Robert Jackson's famous 1950 decision in Johnson v. Eisentrager. In that case, German nationals had been tried and convicted by military commissions for providing aid to the Japanese after Germany's surrender in World War II. Justice Jackson ruled that non-Americans held in a prison in the American occupation zone in Germany did not warrant habeas corpus. But rather than overrule Eisentrager, Mr. Kennedy misinterprets it to pretend that it was based on mere "procedural" concerns. This is plainly dishonest.

By the logic of Boumediene, members of al Qaeda will now be able to challenge their status in court in a way that uniformed military officers of a legitimate army cannot. And Justice Scalia points out that this was not a right afforded even to the 400,000 prisoners of war detained on American soil during World War II. It is difficult to understand why any terrorist held anywhere in the world – whether at Camp Cropper in Iraq or Bagram Air Base in Afghanistan – won't now have the same right to have their appeals heard in an American court.

Article I, Section 9 of the Constitution contains the so-called Suspension Clause, which says: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Justice Kennedy makes much of the fact that we are not currently under "invasion or rebellion." But he ignores that these exceptions don't include war abroad because the Framers never contemplated that a non-citizen, captured overseas and held outside the U.S., could claim the same right.

Justice Kennedy's opinion is full of self-applause about his defense of the "great Writ," and no doubt it will be widely praised as a triumph for civil liberties. But we hope it is not a tragedy for civil liberties in the long run. If there is another attack on U.S. soil – perhaps one enabled by a terrorist released under the Kennedy rules – the public demand for security will trample the Constitutional delicacies of Boumediene. Just last month, a former Gitmo detainee killed a group of Iraqi soldiers when he blew himself up in Mosul. And he was someone the military thought it was safe to release.

Justice Jackson once famously observed that the Constitution is "not a suicide pact." About Anthony Kennedy's Constitution, we're not so sure.