Antonin Scalia is Un-American

The following is my concurring opinion in the case recent Supreme Court case Boumediene et al. v. Bush et. al. … or it would have been, had I been on the court.

Petitioners are aliens putatively designated by the executive branch as enemy combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba. They seek habeas corpus relief from a process under the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007) which would substitute for criminal trial (or trial under the ordinary system of military justice). I concur with the majority and hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. The government asserts that the Military Commissions are an adequate substitute for habeas corpus protection, and that aliens detained abroad do not have rights as such under the U.S. Constitution.

I hold that those procedures are not an adequate and effective substitute for habeas corpus, and that there is no authority under the Constitution for Congress to suspend habeas corpus at this time. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ.

The primary reason for my concurring opinion is to illuminate a dangerous trend toward politics – and away from law – in the dissents by four justices.

The dissents in this case by four Justices (Scalia, Thomas, Alito, and Chief Justice Roberts) reveal a vital truth, that they vigorously disagree with Thomas Jefferson’s fundamentally American proposition that "all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness." All men, the Chief Justice’s and Justice Scalia’s dissents assert, are not equal. Some are more equal than others. And men’s rights to liberty are not "inalienable," but rather quite alienable.

Congress sought through the Military Commissions Act of 2006 to deny appellate jurisdiction to this court, and to other Article III courts:

‘‘(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

Had Congress simply written the law to say that "No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States," then there would be nothing to be said here other than to remark that this court has no jurisdiction. Congress’ power to limit the appellate jurisdiction of Article III courts is plenary under Article III, Section 2 of the Constitution.

But Congress did not legislate this. The prohibition of appellate jurisdiction for habeas corpus appeals from alien detainees appears unqualified at first glance, but upon closer inspection jurisdiction hinges upon whether or not the detention was either "proper" or "is awaiting" proper determination. It’s there that Congress’ will undoes itself when it intersects with the actions of the executive branch. Detention is only proper if it is done under either criminal or military law, according to the Fifth Amendment.

The Fifth Amendment explicitly bans all persons from being held (i.e., "detained") outside of the criminal or military justice systems: "No person shall be held to answer for a capital or other infamous crime, unless on presentment or indictment of a grand jury, except in cases arising in the [military]." The Fifth Amendment establishes two systems of justice, criminal and military. It requires that all men receive a criminal trial unless it arises under the military justice system, and bans other systems of pretended justice. And the Fifth Amendment redundantly bans precisely what the executive branch has explicitly sought for more than six years, unlimited detention without due process: "Nor shall any person … be deprived of life, liberty or property without due process of law."

The executive branch has clearly demonstrated over the past six-and-a-half years that it has no intention to make the detention proper and that it has denied any semblance of due process to detainees. Indeed, it is only this court with its Hamdan decision which has brought the administration to the point of declaring the need for the so-called "trials" under the MCA. But the MCA does not accord detainees either status as military detainees, nor as criminal detainees under the Sixth Amendment, as the Fifth Amendment clearly requires.

Moreover, Congress is not at liberty to suspend habeas corpus at its leisure; Article I, Section 9 of the Constitution limits suspension to cases of rebellion and invasion: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Whereas the United States is not under rebellion, and neither has it been invaded – one terrorist attack on American soil over the past ten years hardly constitutes an invasion – Congress is not empowered by the Constitution to suspend habeas corpus. Justice Scalia argued in his dissent in the Hamdi case that determining the limitations of the suspension clause is the job of Congress alone, and not the responsibility of this court. He’s wrong. Article III of the Constitution grants jurisdiction to this court in "all cases, in law and equity, arising under this Constitution." The habeas clause arises under the Constitution, and this court is obligated to apply the law under the Constitution. We are obligated to apply our judgment of the law, according to our oaths of office, independent of the two political branches of the U.S. government.

But the two dissents in this case reveal that at least four justices have decided this case upon exclusively political, rather than legal, grounds. The politicking begins in the very first line of Justice Scalia’s dissent: "Today, for the first time in our nation’s history, the court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war."

It’s inexcusable for Justice Scalia to employ political cadence and language in his dissent, especially when it flatly contradicts constitutional law. Justice Scalia employs the language of the executive branch by declaring there is an "ongoing war" when in point of fact and law the United States is not at war. The question of whether the United States is at war is not one of opinion; it is a question determined under the unequivocal language of the Constitution itself: "Congress shall have the power ... to declare war." (Article I, Section 8) Congress alone, by an expressed resolution, can bring the nation to a state of war. Yet Congress has issued no declaration of war, and even affirmatively tabled the Paul amendment in 2003 which would have declared war on Iraq. Therefore, the United States is not at war, legally or constitutionally.

Justice Scalia’s dissent moves from the legal to the political when he claims, falsely, that the United States is at war. Justice Scalia is more than smart enough to know better than to retail political slogans that are legally false in a court opinion.

Justice Scalia also presumes that all those apprehended by the executive branch are "alien enemies," adopting without any adversarial process the unsubstantiated assertions of one of the political branches of government. He has dispensed entirely with the presumption of innocence that judges are obligated to follow. The time-honored legal precept of "innocent until proven guilty" has been thrown to the wind in favor of a naked embrace of political assertions. The detainees may indeed eventually be found to be "alien enemies," but they also might be exonerated. Justice requires that judges presume innocence. Justice Scalia presumes the very verdict that courts are constituted to find. He judges without any evidence being presented on either side. As such, he acts as an adjunct prosecutor rather than a judge.

Scalia takes at face value the administration’s claim that "At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield." This is not exactly a persuasive practical argument for continuing unchecked presidential control of detainees, if they’ve indeed made that many mistakes. It sounds more like a practical argument to establish executive branch incompetency to differentiate the guilty from the innocent. Indeed, the executive branch is incompetent to differentiate guilt from innocence, and that’s the primary reason the Constitution establishes the trial system and Article III courts.

Justice Scalia also presumes that all 30 of those the executive branch claims engaged in attacks on American forces abroad "returned" to the battlefield, but it is also quite possible that some or all of them had never engaged in battle against the United States until they were unjustly imprisoned and detained without trial. Indeed, vigorous investigative reporting by many news agencies has established that many innocent people have been imprisoned for years as a result of the detention policies of the executive branch, which has relied heavily upon the services of bounty hunters who were paid on the basis of how many "terrorists" they could apprehend. See a few of the many examples here, here, here, here, and here. The published reports of how inhumanely many detainees were treated could very likely drive some detainees to violence even if they were previously indisposed to attack the United States. Even if the executive branch is entirely correct in stating that 30 released detainees have engaged in attacks on American forces abroad, it’s quite possible that not one "returned" to the battlefield because they had not been in battle against American forces before.

Again, Justice Scalia assumes – without a shred of evidence – that some former detainees have "returned" to the battlefield. And again, his assumptions and his language coincide precisely with the political aims of the executive branch and have no basis in law.

Scalia’s dissent does make one proper observation: "The proper course of constitutional interpretation is to give the text the meaning it was understood to have at the time of its adoption by the people." But Scalia understandably doesn’t cite American colonial complaints of British tampering with trial rights in his dissent. Perhaps, that’s because to do so would completely undercut his dissent. Instead, he relies exclusively upon the very same inadequate British detention and trial laws that American colonists cited as their reasons for seeking independence from the British crown.

Among the complaints the colonists listed in the Declaration of Independence for separation from the British Crown were:

Extra-juridical proceedings: "He has combined with others to subject us to jurisdiction foreign to our constitution, and unacknowledged by our laws."

Denial of trial by Jury: "For depriving us, in many cases, the benefits of trial by jury"

Rendering the military and executive branch independent of the civilian branch: "He has affected to render the military independent of and superior to the civil power."

These are the same complaints listed by the petitioners in this case.

The British denied trial rights to their American brethren across the sea. Now the executive branch is denying trial rights to people across the sea, and Justice Scalia et al. are untroubled by this fact. "There is simply no support for the court’s assertion that constitutional rights extend to aliens held outside of U.S. sovereign territory," Scalia argues.

This is kin to the political argument that "the Constitution has no legal force outside of the territory of the United States." The very people who make this latter statement are the ones who argue most vociferously against its truth. If the Constitution had no legal force outside of the territory of the United States, then the federal government could not legally fight against terrorists abroad, and it couldn’t punish soldiers who go AWOL while abroad. Nor could it legally punish attacks against American military facilities, like the 1982 bombing of the Marine barracks in Lebanon. They know the Constitution applies to American property and personnel on the high seas and abroad in foreign lands, including those in American custody, and especially if they have engaged in attacks on U.S. officials or property. No one really disputes this kind of jurisdiction.

Justice Scalia’s novel argument here is not a jurisdictional dissent, that the Constitution doesn’t apply, but rather that foreigners have no individual rights when they find themselves in the clutches of federal officials abroad. In essence, he’s arguing that foreigners are not endowed by their Creator with unalienable rights. Rights, he argues, are something that the Creator peculiarly grants only to U.S. citizens.

This is a fundamentally un-American position, contradicting the essential statement of this nation on rights, cited above from the Declaration of Independence.

And the plain language of the U.S. Constitution flatly contradicts his statement. The Fifth Amendment makes no territorial distinction on rights, simply stating that "Nor shall any person … be deprived of life, liberty or property without due process of law." The clause is plenary on both geography and citizenship. "Any person" includes aliens. The Founders who penned the Declaration of Independence were of the same mind on rights with those who wrote down our highest law, the Constitution and the Bill of Rights.

Justice Scalia frets in his dissent that "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." Of course, that’s precisely what the intersection of the Fifth Amendment does when it intersects with Article III, Section 2 of the Constitution. The Constitution mandates judicial review of detainees. Justice Scalia does make a valid point, however, about the majority opinion in this case in that it tended more toward confusion than toward explaining the bright line rule drawn by the Constitution.

Justice Scalia’s dissent seems to imply that trials are gifts to the guilty, that somehow the guilty benefit from trial and the great masses of people suffer from it. But it’s quite the reverse. The guilty are given a trial to protect the great masses. Anyone found guilty in a trial could be punished with a life sentence or death, offering no protection to the guilty. Indeed, terrorists against the United States have traditionally received the death penalty after a criminal trial, Oklahoma City bomber Timothy McVeigh being one example in recent memory. But the innocent masses are protected under the trial process – of which habeas corpus is no small part – from executive branch errors, malignant neglect, or outright corruption.

If Justice Scalia were interested in the "proper course of judicial interpretation," which is "meaning it was understood to have at the time of its adoption by the people," he would recognize that habeas corpus protection was fully on the minds of the Founders. Alexander Hamilton favorably quoted William Blackstone in The Federalist #84, to the effect that denial of habeas corpus was a serious breach of liberty:

"‘To bereave a man of life,’ says he, ‘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.’ And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls ‘the bulwark of the British Constitution.’"

Habeas corpus is a bulwark of the U.S. Constitution as well, and it has been delayed for six years too long in these cases before this court.

Yet Hamilton and Blackstone’s description of tyranny is precisely what is defended by the four dissenting justices in this case. They have co-conspired with the executive branch to the "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."

I concur in result with the court.

June 20, 2008

Thomas R. Eddlem [send him mail] graduated Magna Cum Lousy from the I Can Read The Constitution School of Law and has been admitted to bar at pretty much any place he can afford to buy a round. He has been published in more than 20 periodicals, and his essays have been re-published in five books. He has also contributed a chapter to an upcoming biography on Rep. Ron Paul of Texas.

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