Saturday, June 21, 2008

Question for Roberts and Scalia

Does the right hand know what the other right hand is doing?

This question presented itself as I half-skimmed, half-glanced my way through the 134 pages of Supreme Court opinions in the latest detainee/habeas corpus case, Boumediene v. Bush. In particular, the question arose when I got to the dissents. There are two: one written by Chief Justice Roberts, which Justices Scalia, Alito, and Thomas joined; and one written by Scalia, which Roberts, Alito, and Thomas joined. There's just one little problem: the dissents start out by saying opposite things. Roberts says the majority opinion will have only a "modest practical impact" (or words to that effect) on the detainees' situation, so the case is less about the detainees, he asserts, than about a struggle over which branch of government gets to set policy in this area.

Although Scalia agrees that there is a struggle among the branches and indeed accuses the majority of holding an "inflated notion of judicial supremacy," Scalia, by contrast with Roberts, begins his dissent by declaring that the majority opinion will have "disastrous consequences." It will lead, he predicts, to more detainees being released than otherwise would occur, and some of these may return to the battlefield (as has happened in some previous cases where the military itself decided to release detainees).

"Modest practical impact" or "disastrous consequences"? Which is it, guys? You can't have it both ways.

p.s. No doubt someone else has already made this point, but I have read little commentary on the opinions, so any copy-cat-ism here is inadvertent.


hwh said...

Nice early A.M.Noticing,LFC!

hank_F_M said...


Not having reviewed the decisions and dissents themselves, however I got the impression that the different Justices are talking about two differnt things.

On the cases themselves it will have a "modest impact", the petitioners will get their HC hearing, which will hold that they are being properly held. They are after all combatants who did not meet the requirements for combatant status in the meaning of Article 2. But as the Supreme Court has held they meet the requirement fo article 3. There is no question they can be held as prisoners of war.

In terms of future impact on the ability of the US to conduct future operations there could be "disastrous consequences", where even the cleanest action is crippled by people looking over their shoulder, massive "pro forma" but unsupportable legal actions and the fear of second guessing on grounds to be determined later.

I have no sympathy with the Bush Administration on this, it was there attempt to manipulate the Geneva Conventions rather than follow them with a strict construction and original intent (contrary to there own legal principles) that got us into this trouble to begin with. If they had just followed the book as it was written into regulation before 9-11 they would have gotten everything they needed.

But I am not sure there is not an overreaction in the other direction.

Probably when every thing quiets down in a few years Congress at the urging of the Pentagon will rewrite the law in a more clear and balanced manner, thus avoiding the "disastrous consequences."

LFC said...

hwh: thanks!
hank: Scalia's prediction of disastrous consquences does appear to relate to the prospective HC process, rather than the considerations you mention. But I was reading the whole thing rather quickly, so at some point i will need to go back and look at it more closely.

bro said...

This decision makes my head spin. It makes the Talmud, or for that matter theoretical debates in art history, seem as simple as Mother Goose rhymes by comparison. Foreign or US soil? Enemy combatant or not? Citizen or alien? Habeas corpus process or acceptable substitute? Detainable or not "on the merits"? Disastrous for US security or not? I looked for help online and ran across the Federalist Society debates. OMG.

bro said...

p.s.: there was also the not-very-well written NYTimes OpEd piece last Saturday which argued that the majority opinion should have taken the citizen vs. alien determination out of the question but not (I guess) the US vs foreign soil one...

El Jefe Maximo said...

I have a little more sympathy for the Bush Administration's position here (a little) than Hank does.

I'm a few years away from the reading that I did on this subject (both in school and privately), but I think that the fundamental problem for the US, and for other great powers in its position, is that the revisions in 1949 to the Third Geneva Convention (on the treatment of Prisoners of War)
and to the Fourth Geneva Convention (on civilians in time of war) of 1949 privileged unconventional warfare and guerrillas much more than either the 1929 version of the Third Geneva Convention, or the earlier Hague Conventions that governed the areas now governed by the Fourth Geneva convention. The 1949 re-working of the Geneva Conventions occurred after a long and destructive war in which resistance and underground movements (e.g. France and Yugoslavia) had been perceived by most in the west as "good guys" and in the context of the Cold War where the communist powers were emotionally and practically invested in so-called "national liberation movements."

The legal environment has been changed even further in the favor of non-state actors by the 1977 additional protocols. Although unratified by the US, these do, like it or not, inform most commentators' interpretations of international law obligations.

What the administration was looking for was a way not to grant the status of PW's to non-state actors. This is harder to do under the post 1949 legal regime, and I think the administration was essentially trying to work its way back to a WWII era conception of the law. The "unlawful combattant" approach reminds me a bit of traditional German military law and what it referred to as francs-tireurs.

Maybe the Administation would have had a bit more success legally if they'd workedthe traditional approach to piracy (essentially bad actors protected by no law) is worked into the thinking. But it's probably too late for this now.

I've just skimmed Boumedienne myself (the thing is so huge, and I haven't yet have time to give it the attention it deserves) but my horseback impression is that Hank is correct that the dissenters are talking about different things.

My suspicion would be that in iffy situations, the people determining what to do on the ground might try to avoid being in situations where taking prisoners is a possibility; or else ensuring that prisoners wound up in the hands of allied forces less legally constrained.