"Isn't the main issue," Justice John Paul Stevens plaintively asked, "the fact that it has taken six years" to resolve the question whether alien enemy combatants "have been unlawfully detained" at Guantánamo Bay?
For the Supreme Court hearing arguments last week in Boumediene v. Bush, that should not even be a relevant issue. (Lakmar Boumediene is an Algerian who emigrated to Bosnia in the 1990s. He was arrested for plotting to attack the U.S. embassy in Sarajevo and turned over to the U.S military.) If it is lawful to imprison captured enemy operatives without trial until the end of hostilities, as it has been for centuries under the laws of war, then it should not matter how long they've been held. Thus did Solicitor General Paul Clement gamely counter that emphasizing the six-year delay serves only to "cloud the basic constitutional question before this Court."
Yet, for most of the morning it was difficult to remember what that issue was. Not for want of skilled lawyering; Clement and his adversary, former (Clinton administration) Solicitor General Seth Waxman, gifted advocates, were at the top of their very considerable games. No, the problem is that the basic question is too bracing: Does the Constitution of the United States afford any due process for alien jihadists even as they conduct a terror war against Americans?
Waxman is far too clever to claim that the Framers somehow designed a Constitution which entitles enemies of the American people to use the courts of the American people as a weapon of their war against the American people: that the judiciary is not a governmental component of a nation at war but rather an impartial supra-tribunal whose only allegiance is to "the law." So the combatants' side resisted couching their claim as an entitlement of the enemy.
We were instead serenaded with a song of our constitutional commitment to that holiest of rhetorical holies, the rule of law. Even in the midst of hostilities, Waxman maintained, there can be no "law-free zones." Not at Gitmo, and not, as Chief Justice John Roberts's piercing questions teased out of Waxman's euphonious sound-bite, in any place on the globe where the United States fights war and takes prisoners. To the contrary, there must always and everywhere be a judicial process for reviewing military detention: a process that is both meaningful and, Waxman stressed, swift--deftly pouncing on Justice Stevens's "main issue."
Even if one agreed, for argument's sake, that there should be such a process, however swift, that would not necessarily mean it needed to be a constitutional process. Congress has designed an adequate statutory procedure for testing the fundamental fairness of detention, so there should be no need to confront the more vexing issue of whether the Constitution imposes any limits on the harshness with which government may treat the enemy during hostilities. This, not surprisingly, was the tack that Clement took. Having had all manner of Constitution-shredding calumny laid at its feet since 9/11, the administration clearly preferred to gear its oral argument toward how much, in reality, has been done for the combatants. How much, in theory, could be done to them is better left for the brief to explain.
The solicitor general had a very good case. Let's leave aside that in Johnson v. Eisentrager (1950) the Supreme Court flatly held that the Constitution does not vest foreign enemies with the right to habeas corpus--i.e., to challenge their military detention before the civilian courts. Let's instead compare what Congress has wrought (with the 2005 Detainee Treatment Act and the 2006 Military Commissions Act) and "the base line" of 1789, when the Constitution enshrined habeas rights for Americans.
Clement recounted that in the late 18th century, alien combatants faced three insuperable hurdles in front of the courthouse door: (a) the jurisdiction of the federal courts did not extend outside U.S. territory; (b) the judicial writ was simply unavailable to belligerents because taking prisoners of war was deemed a political act of the sovereign, not a legal question for the courts; and (c) judges were required by separation-of-powers principles to accept the executive branch's determination of combatant status.