Here’s a good rule of thumb for evaluating Supreme Court decisions. Remember at the start that the fundamental dichotomy that demonstrates “good” or “bad” among the two American quasi-ideologies is whether the decision is strict construction or legislating from the bench. Strict construction ostensibly means that the decision has successfully deciphered the language of the Founding Fathers from 220 years ago and parsed it into an application consonant with that guidance. If that sounds impossible, you are correct. Legislating from the bench means that the Court has applied the now well-established principle of judicial review first implemented in 1803 with Marbury v Madison. In other words, doing what they are supposed to do in protecting the minority from unjust tyranny of the masses imposed by an evil legislature and executive. Also a difficult task to do while satisfying anyone.
The rule of thumb is that if the decision is narrowly split, as in 5-4, it is highly suspicious of being very good or very bad. If the decision is unanimous or the majority is significant, like 8-1 or 7-2, then it means that justice is so obvious and the arguments counter are so ludicrous that even the nine Supremes can see the forest among all those trees. But, 5-4 means craziness afoot.
That’s why Boumediene v. Bush is so problematic. It simply is illogical at best and downright dangerous at worst. The Constitution displays great wisdom for us if we only read the simple words placed before us. We learn that as Americans we, in this great country, have a right of habeas corpus. That Latin phrase essentially means that if our government imprisons us they must tell us why, let us face our accusers and promptly give us a trial or they must release us. Sounds great to me. I like it so far.
But the Founders’ wisdom went further. They could envision a situation in which turning folks loose in a period of national peril might be unwise. That’s why Article 1, section 9 of the Constitution, restricting powers of Congress, forbids the suspension of habeas corpus except, "when in Cases of Rebellion or Invasion the public safety may require it." Under that phrase, Abraham Lincoln suspended the right during the civil war. Seemed like a good idea at the time, although he has been condemned for the action since then by an array of the usual suspects.
That’s what five of the Supremes didn’t get. No, we aren’t in a rebellion as we were in the Civil War. But, quite rationally one could conclude when Islamic terrorists take control of four civilian airliners simultaneously and crash them with all aboard into population and financial centers with the clear intent of bringing the US government to its knees, when the world financial center and the capital of the United States suffer a coordinated attack, you might reasonably conclude an invasion in modern guise is ongoing and public safety is endangered. It defies reason to conclude otherwise.
Anyone who has served in combat in the US military has been exposed to “rules of war”—an oxymoronic, convoluted euphemism if ever there was one. In that bundle we also find the Geneva Conventions, a subset of rules that civilized nations promise to abide by when undertaking prolonged uncivil behavior. All GIs get training in these policies so that we may expect humane behavior in return, but of course we seldom get it if Korea, Vietnam or Desert Storm were any indication.
Some things I learned. I’ve got to wear a uniform so that I may be recognized as a legal military combatant. I’ve got to carry a national identity card that identifies me as a military member of a signatory nation. I’ve got to abide by the rules of warfare, so no targeting of non-combatants. Those things don’t seem that difficult. They aren’t a major restriction to combat operations, unless of course you are an Islamic jihadist not representing a signatory nation or part of an organized military or restricting your targeting to folks who might shoot back. Wear a jalabiyah or thobe, grow a beard, strap a bomb to yourself and kill women and children. No ID or uniform required. Get protected anyway because Justice Souter is a nice guy.
If you had the chance to serve abroad, you learned something else. Get arrested off base for doing something that was not clearly related to military duty and you would probably be subject to local justice. You might get someone from the embassy to bail you out and if there was a national status of forces agreement, you might get remanded to military custody. But, maybe not.
To gain the protections of the US Constitution some conditions seem obvious. We’ve stretched the protective envelope to cover non-citizens within this benevolent country of ours. I’m not too uncomfortable with that. But the incontrovertible fact in my mind is that to fall under American jurisprudence, you would need to be in America. We can’t set up a court in Fallujah or Zagreb or Kandahar to offer American justice to locals caught up in terrorist acts.
So now we have to look at the 5-4 decision of the Supreme Court on this and conclude:
They don’t think we are under siege. They don’t think rules of war and military conventions apply to the terrorists. They don’t think the law of armed conflict restricts anyone else but us. They believe that the US government and military are repressive and unfair to those they capture attempting wholesale slaughter without military uniforms, identification, rank, organization or restraint. They believe that we can be magnanimous and beneficent to those who would destroy us and that won’t lead to disaster in the long run. They apparently believe that we are evil, they are good and danger doesn’t exist.