Creating Legal Rights for Suspected Terrorists: Is the Court Being Courageous or Politically Pragmatic?

By Pushaw, Robert J., Jr. | Notre Dame Law Review, July 2009 | Go to article overview

Creating Legal Rights for Suspected Terrorists: Is the Court Being Courageous or Politically Pragmatic?


Pushaw, Robert J., Jr., Notre Dame Law Review


Boumediene v. Bush (1) continued the Supreme Court's quixotic quest to establish legal guidelines for the War on Terrorism, which George Bush waged--with the support of Congress--after al Qaeda's attacks of September 11, 2001. (2) A majority of Justices began their battle against the political branches five years ago in a pair of cases.

First, Hamdi v. Rumsfeld (3) invalidated the government's indefinite detention of "enemy combatants" (i.e., those who had engaged in armed conflict against the United States) who were American citizens. (4) The Court ruled that they had due process rights to notice and a hearing before an impartial decisionmaker, which might include a military tribunal. (5)

Second, Rasul v. Bush (6) concerned the President's decision to imprison alien enemy combatants in Guantanamo Bay, Cuba, which he had made in reliance upon entrenched precedent construing the federal habeas corpus statute as not extending jurisdiction to foreigners captured and confined abroad. (7) The Court creatively reinterpreted this statute to allow the Guantanamo detainees to file habeas petitions and purported to distinguish its previous contrary cases. (8)

In consultation with the executive branch, Congress swiftly responded by clarifying that its habeas law did not give any federal court jurisdiction over aliens incarcerated at Guantanamo (thereby overturning Rasul) and by establishing instead for these prisoners a multilayered process of military justice followed by federal judicial review. (9) Seeming to defy Congress, five Justices in Hamdan v. Rumsfeld (10) held that it had not repealed the Court's appellate jurisdiction over cases involving foreign enemy combatants or authorized their trial by military commissions. (11) Once again, Congress quickly made crystal clear that it had indeed intended to (1) deprive all federal courts (including the Supreme Court) of jurisdiction over habeas petitions from such detainees, and (2) empower the President to try them by military tribunals. (12)

Undaunted, the same five Justices who had formed the Hamdan majority recently reached the unprecedented conclusion in Boumediene v. Bush that the Constitution's writ of habeas corpus may be invoked by noncitizen enemy combatants who have been apprehended and detained outside of the United States' sovereign territory. (13) Accordingly, the Court struck down Congress's procedures for such detainees as a suspension of the constitutional habeas writ and as inadequate to protect due process rights. (14)

Legal scholars and pundits, who almost uniformly loathe George Bush and thus applauded the Hamdi, Rasul, and Hamdan decisions, praised the Boumediene Court for its "courage" in upholding individual liberties and the "rule of law" (15) against the assertedly unparalleled misconduct of the Bush administration, which had suffered another stunning "rebuke" that would force it to make significant policy changes. (16) Such claims seem implausible, for several reasons.

For one thing, the current Justices in general are not particularly bold or hell-bent on expansively protecting individual rights, especially as compared to their predecessors on the Warren and early Burger Courts. The Rehnquist and Roberts Courts have shown far greater restraint by: (1) cutting their annual docket in half; (2) frequently deciding cases on the narrowest possible grounds, thereby leaving many legal questions open and amenable to further democratic deliberation; and (3) refraining from creating far-reaching constitutional rights. (17) The "enemy combatant" cases depart from this cautious approach.

Moreover, the Court hardly promotes the rule of law by disingenuously "interpreting" statutes to mean the opposite of what they plainly say (as in Rasul and Hamdan), inventing new constitutional doctrines (as in Boumediene), and ignoring or distorting its precedent (as in all three cases). On the contrary, the rule of law presupposes that judges will impartially apply the written legal rules contained in the Constitution, statutes, and cases.

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Creating Legal Rights for Suspected Terrorists: Is the Court Being Courageous or Politically Pragmatic?
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