This is Boumediene, my friend

"I would want to find out directly from my Attorney General -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important-- one of the things we've got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity."

– Barack Obama

When Sandra Day O’Connor, a Goldwater Republican from Phoenix, left the Supreme Court, Anthony Kennedy became the “swing” vote. O’Connor’s last great trapeze performance, we should recall, was Bush v. Gore, which won her that comfortable retirement overlooking the 9th hole, her seat filled by someone younger and much more dangerous.

In Europe they say the right end of their political spectrum is somewhere to the left of our left end. So when Kennedy became the new swing in town, it signified the more rightward shift of the Court. As the swing man, Kennedy has voted with Justices Scalia, Thomas, et al. against affirmative action and campaign finance laws, and for States' rights except when it comes to choosing a President.

But Kennedy is a europhile and history buff, and in his travels in England and the continent he has soaked up some of the views that underpin the rationality of international law. He has been slowly trying to educate his fellow clerics, with only limited success, such as when, in 2005, he wrote the decision ending the juvenile death penalty, reversing his earlier 1989 position, in which he joined Justice Scalia in deciding to stop the 17-year-old heartbeat of Kevin Stanford and the 16-year-old heartbeat of Heath Wilkins (he had, that same day, joined Scalia and O’Connor in painfully halting the heartbeat of Johnny Paul Penry, who was 22 years old at the time of his crime, but had the mental age of a 6 1/2-year-old, and whose case was championed by Amnesty International, International Human Rights Law Group, Defense for Children International, the American Society for Adolescent Psychiatry, and the American Bar Association).

Kennedy has mellowed since 1989, and if presented with a case about land mines, torture, or depleted uranium, there is a stronger chance today he would take the European point of view over that of his President and party.

Kennedy proved the swing man in both Hamdan, which reaffirmed the Geneva conventions as supreme law of the land, and Boumediene v. Bush, that rejected the autonomy of the Guantanamo torture camp and reinstated habeas corpus as a fundamental right to everyone in US custody, regardless of their status or alleged crimes.

Kennedy’s opinion in the Boumediene case handed down last week, on June 12, is a real pleasure for an old firehorse such as myself to read. Early in the opinion he moves into his historical element and quotes a statement co-authored by Patrick Henry, concerning the rationale of habeas:

“[t]hat every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof if unlawful; and that such inquiry or removal ought not to be denied or delayed...."

He quoted The Federalist No. 84 (written by Alexander Hamilton, under the pseudonym Publius in 1788):

“[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone . . . are well worthy of recital: ‘To bereave a man of life . . . or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’”

Kennedy’s history lesson to his fellow justices is not without irony. The cases he has to cite to discern the applicable law in Guantanamo are all places of unspeakable inhumanity, their sordid histories for the most part papered over by the Supreme Court’s predecessors. So we learn of cases coming from Puerto Rico, Guam, and the Philippines after the Spanish-American War, when the U.S. detained and tortured political dissidents; Hawaii, where the U.S. deposed a peaceful monarchy at the behest of a clandestine plantation-owner cabal; Scotland in the 17th century, during the clearances (where habeas was not extended); and Ireland in the 18th century (where, although a separate country, it was). Even the Bechuanaland Protectorate in South Africa in 1910 gets mentioned. This is the notorious and vile company the Naval Base at Guantanamo Bay finds itself in. How extraordinarily apt.

The “Torture Nine” were those nine men who held out against their 91 fellow Senators when the McCain bill was voted out, prohibiting the military (not CIA or private contractors) from engaging in torture on behalf of the President. They were: Allard (R-CO), Bond (R-MO), Coburn (R-OK), Cochran (R-MS), Cornyn (R-TX), Inhofe (R-OK), Roberts (R-KS), Sessions (R-AL), and Stevens (R-AK). Senator McCain has since voted to permit the President to torture, as long as uniformed military are not present.

Addressing the issue of whether Guantanamo is outside the reach of the Constitution because it belongs to Cuba, Kennedy says:

“[T]he Government’s view is that the Constitution had no effect there, at least as to non-citizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.”

So why not just remand to the Court of Appeals for further proceedings, or wait until after the Military Commission does its work? Kennedy says these are just more delaying tactics.

“The gravity of the separation-of-powers issues raised by these cases and the fact that these detainees have been denied meaningful access to a judicial forum for a period of years render these cases exceptional.”

He then piles it on, making the Military Commissions moot.

“[W]hen the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the release.”

That is so up in the face of the Commissions Act (which was not at issue in this case and so still operates), that it cannot escape the notice of those few now being tried in Guantanamo. The Commissions Act denies federal courts (or even the commissions themselves) any power to order the conditional release of an individual, saying in advance that even if individual defendants win and prove themselves innocent of all charges, despite not being allowed to learn what evidence is brought against them, have effective counsel, or to confront their accusers, they don't get released.

What is the definition of a show trial, if not one in which the accused still spends his life in prison even after being found innocent of all charges?

What is the practical distinction between the trial of Charles I in 1649, the Moscow Trials of the 1930s, the Hungarian (1949) and Czech (1952) purge trials, or the trial of the Gang of Four in Beijing in 1976, and what is happening this month in Guantanamo? There is none.

Kennedy telegraphs his own impatience with the "War on Terror:"

“Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.”

Bottom line:

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.”

In the concurring opinion, the Constitutional defenders (Kennedy, Stevens, Souter, Ginsburg and Breyer) draw down on the four dissenters (Roberts, Scalia, Thomas and Alito), in a poison pen fight:

“These suggestions of judicial haste are all the more out of place given the Court’s realistic acknowledgment that in periods of exigency the tempo of any habeas review must reflect the immediate peril facing the country. It is in fact the very lapse of four years from the time Rasul put everyone on notice that habeas process was available to Guantanamo prisoners, and the lapse of six years since some of these prisoners were captured and incarcerated, that stand at odds with the repeated suggestions of the dissenters that these cases should be seen as a judicial victory in a contest for power between the Court and the political branches. The several answers to the charge of triumphalism might start with a basic fact of Anglo-American constitutional history: that the power, first of the Crown and now of the Executive Branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire into the legality of executive detention. And one could explain that in this Court’s exercise of responsibility to preserve habeas corpus something much more significant is involved than pulling and hauling between the judicial and political branches. Instead, though, it is enough to repeat that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions [and extended torture and even murder – ed.] in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation.”

For their part, the Bush bunch adhered to the talking points memo and reframed the discussion from one of human rights to one of mere political bickering, with Scalia’s opinion providing the scathing rebuttle:

“… so long as there are some places to which habeas does not run — so long as the Court’s new “functional” test will not be satisfied in every case — then there will be circumstances in which “it would be possible for the political branches to govern without legal constraint.” Or, to put it more impartially, areas in which the legal determinations of the other branches will be (shudder!) supreme. In other words, judicial supremacy is not really assured by the constitutional rule that the Court creates. The gap between rationale and rule leads me to conclude that the Court’s ultimate, unexpressed goal is to preserve the power to review the confinement of enemy prisoners held by the Executive anywhere in the world. * * * What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.”

The branch that knows least has now allowed court assistance for the 40 to 60 people who have already been determined not to be enemy combatants, culled from among those as young as 11 when captured, or those over 100. These innocents still linger in endless detention in dark dungeons, at Bagram Air Force Base, aboard floating prison ships, or frying in the hot sun.

How many women are being held captive in Iraq, Afghanistan, or in secret CIA torture camps? Those who know won’t say. Kennedy’s ruling does not specifically address any of these, outside Cuba, leaving ample wiggle-room for the President to carry on his heinous detention and torture gulags world-wide.

At least a third of the more than 750 prisoners at Gitmo have never received a Combat Status Review. Fewer than a tenth will be put on trial before a Military Commission. More than a hundred have filed habeas petitions, and had them dismissed prior to last week’s Boumediene decision. Those men have 7 more days to restart the process or be time-barred.

If nothing else, Boumediene established that there can be no law-free zones, no matter where we, the taxpayers, try to build them. While Roberts, Scalia, Thomas and Alito might prefer that there were, and that the President can do with those prisoners whatsoever gives him pleasure, they did not prevail in that view, at least not last week.

The end of these justices’ term on the Court draws closer by the day. Let us hope you can find some more humane replacements, when given your chance, brother Barack.