I have quietly observed the joy with which giant swaths of the media have greeted the Supreme Court’s discovery of habeas corpus rights for enemy combatants. “The system works!” they brayed as they celebrated the restoration of the rule of law. In fact, just the opposite has occurred. The issue of granting habeas corpus rights to enemy combatants was something that the Constitution failed to draw a bright line on. Indeed, it failed to draw any line at all. So for the Supreme Court to divine an array of constitutional rights for enemy combatants, it had to engage in wholesale legislating from the bench. It doesn’t get more extra-legal than that. There was a time when such antics bothered conservative constructionists like George F. Will. Yet Will, apparently delighted by the decision’s policy implications, penned a column yesterday saluting the wisdom of the court and snidely suggesting that John McCain hadn’t read the decision but instead relied on the analysis of a “clever ignoramus (who) convinced him that this decision could make the Supreme Court — meaning, which candidate would select the best judicial nominees — a campaign issue.” Just as there was a time when Will rejected judicial activism, there was a time when he put sufficient thought into his columns that he didn’t have to rely on puerile insults. I guess the door has closed on both eras. What makes the joy over the Boumediene decision particularly ironic is that the system was working before the Supreme Court pulled the plug on the political process. With no clear constitutional guidelines on the matter, what legal protections we afford foreign combatants belongs in the realm of politics. What’s more, those who wanted Gitmo closed had all the momentum. Barack Obama is the favorite in the presidential election and he had pledged to shutter the facility. (So has John McCain, for that matter.) The intelligentsia had certainly made its voice on the matter heard. Most non-lawyers read Supreme Court decisions with one paramount thought: Do I like the result? Hence, atrociously reasoned decisions like Roe v. Wade have the potential for achieving wild popularity. Of course, you’d expect better from George F. Will who has spent decades earning a reputation as one of Washington’s serious men. And yet nowhere in his article on Boumediene does Will acknowledge, let alone grapple with, the fact that the extension of habeas corpus in this situation goes to foreign enemy combatants, not “we the people.” Writing for the majority, Justice Kennedy describes the writ this way:
It’s fair to ask, Freedom for whom? Khalid Sheikh Muhammad? If such questions entered George F. Will’s mind, space considerations meant he had to leave them out in favor of childish insults directed at John McCain. One can make a decent policy case that Gitmo should be shuttered, including all that mumbo jumbo about how the increased security isn’t worth the sacrifice of our national soul that comes along with operating such a detention center. As you may have inferred from the preceding, I don’t think much of such arguments, but I can acknowledge their strengths and relevance. For years now, the administration has dealt with the political fallout of Gitmo. That’s as it should be – the public has every right to appraise how the administration is fighting the war on terror and whether it approves of the administration’s tactics. Similarly, those who propose granting the rights of American criminal defendants to enemy combatants seized on the battle field should have to defend their policies in the political arena. If the next Mohammed Atta should be a graduate of Gitmo, the authors of his freedom should be held to account. Because of the latest foray into judicial hyper-arrogance, the five unelected lifetime servants who penned Boumediene will have no such accounting. Contra George F. Will, there is no more serious political issue than a Supreme Court that feels free to substitute its judgment for the electorate’s when the whim strikes. It would not only be smart politics for John McCain to make this an issue, it would be serious and substantive politics as well.
