The American Mind

The U.S. Supreme Court ruled Guantanamo Bay prisoners can get hearings in federal court:

Justice Anthony Kennedy, in the majority opinion, wrote that planned military trial procedures “are not an adequate and effective substitute” for review by a U.S. federal court. “We hold that these petitioners do have the habeas corpus privilege,” Justice Kennedy said, referring to a legal right to petition one’s criminal detention.

The Volokh Conspiracy gang is all over the opinions. Lyle Dennison summarizes the opinions.

In an e-mail blast Andrew McBride, a former clerk to Justice Sandra Day O’Connor said,

The Supreme Court has now held that foreign enemies wherever they are located are entitled to invoke the writ of habeas corpus and use civilian courts to litigate their status. Under Boudemiene, Osama Bin Laden, after this capture in Pakistan, could file a writ of habeas corpus in a U.S. court seeking his release. He could use that proceeding to subpoena military personnel, dispense anti-American propaganda, seek sensitive national intelligence material, and generally disrupt our anti-terrorist efforts. Justice Kennedy has decreed that the two Political Branches must share a portion of the war powers with the judiciary. The ruling is a breathtaking display of judicial hubris.

From my limited reading it seems to me Justice Kennedy thinks anyone anywhere has the right to a U.S. habeas corpus hearing. From my plain reading of the constitution I don’t see that it applies to non-U.S. citizens. (It doesn’t say it doesn’t apply either.) Marty Lederman wonders about something similar.

More practically I have the same worries as Ed Morrissey:

It seems absurd to apply criminal law to unlawful combatants captured during hostilities abroad. Will they require a Miranda reading, too? Do we have to bring the soldiers and Marines who captured them to the trial? In our 232-year history, when have we ever allowed that kind of access to enemy combatants not captured inside the US itself?

I think war-fighting has already gotten too legalistic with military leaders asking lawyers to approve actions to cover themselves. The Law of Unintended Consequences will raise its ugly head. In his opinion Justice Scalia said the court’s ruling would “make the war harder on us. It will almost certainly cause more Americans to be killed.” For once, I hope he’s wrong.

UPDATE: Nick Schweitzer asks me to read the 14th Amendment. Here’s the applicable section:

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The amendment gives people born or naturalized in the U.S. citizenship. It also says a state can’t “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” A textualist could read that as applying only to the states and not the federal government. For the sake of argument lets assume this amendment didn’t simply force former Confederate states to accept blacks as citizens but also applies to the federal government. (I assume the Supreme Court has ruled on this.) What does “jurisdiction” mean? Is it simply some location where the U.S. has legal authority? Then it seems to mean all people in any U.S. embassy has the right to a habeas corpus hearing. How about where U.S. power is displayed? Does that mean prisoners captured on a battlefield in Afghanistan or Iraq have habeas corpus rights? Will every platoon need a lawyer? Will the military have to start recruiting lawyers for front line fighting?

James Joyner has a round-up of blogosphere reaction.