There was a fascinating argument before SCOTUS today. The case of Boumediene v. Bush, in which a detainee at Guantanamo Bay is suing for a hearing under the Constitutional right of habeas corpus, literally "you have the body", meaning that under the Constitution, an individual has a right to face his accusers in a court of law observing due process. (How's that for a run-on sentence?)
First, we need to look at who is bringing the case...an enemy combatant - a new term devised to define those fighting against our nation without the sanction of a recognized nation. Think Barbary pirates, Indian wars, and in some instances, Vietnam.
What is twisting up everyone's panties, however is that this individual is claiming that he is not a combatant, but that he got caught up in a raid and has been held without a trial for six years.
On the face of it, this is not right. I mean, how would you like to be swept away by the government and separated from your family for six years, just for being in the wrong place at the wrong time?
Wait! Remember, this is not about whether it is a nice, good or edifying thing to be incarcerated for six years. It is about whether or not a non-citizen, let alone an enemy combatant has Constitutional rights. Whenever an individual engages in a social contract with a nation, either through birth or naturalization, the rights and duties of the nation are bestowed. They are not bestowed merely by claiming them.
Unfortunately, some of the Justices didn't seem to want to dwell on the issue of whether or not a non-citizen should be granted Constitutional rights--they see it as a foregone conclusion. Many see being on US soil as being the only requirement to grant the writ (a major reason why they haven't been moved). Justice Kennedy pretty clearly takes this position and is clearing the path to his forthcoming decision by saying the there is no substantive difference between US soil and GTMO.
They are also looking at whether or not the military tribunals that were put in place are an adequate substitution for habeas. This is patently silly because if they don't have a right to habeas, there is nothing in the Constitution that says they should have some sort of substitute. Therefore, SCOTUS should keep its nose out, as this becomes a political, not a judicial issue.
Andrew McBride, in a fascinating debate on the issues in this case over at the Federalist Society says,
The idea that the judiciary would have any role in deciding whether foreign nationals were enemy combatants would have been utterly incomprehensible to our Framers. These were quintessentially “political questions” having elements of both war powers and foreign affairs beyond judicial ken or competence.Also Brad Berenson,
The right to invoke the constitutional writ of heabeas corpus (and the constitutional guarantees it is designed to help enforce) is limited to those who have voluntarily created some peaceable relationship with this body politic. Someone whose only connection to this country is having been captured by our military while trying to harm it or its interests has no more right to invoke the writ of habeas corpus than he does to invoke a Second Amendment right to bear arms.
To extend constitutional protections to them [enemy combatants] on this basis would be to reward the very civilian disguises that make their belligerency unlawful and so uniquely dangerous to real civilians, ours and other nations'.I have little confidence that SCOTUS will come down on the right side in this one, judging from Kennedy's questions. Probably the decision will be mixed, with some details being handed back to the circuit court.