******************** THIS BLOG HAS MOVED TO WWW.LEGALINSURRECTION.COM ********************

This blog is moving to www.legalinsurrection.com. If you have not been automatically redirected please click on the link.

NEW COMMENTS will NOT be put through and will NOT be transferred to the new website.

Tuesday, December 29, 2009

Scalia Was Right About Releasing Gitmo Detainees

Reports indicate that two of the planners of the attempted airplane bombing over Detroit were released Gitmo detainees, Muhamad Attik al-Harbi and Said Ali Shari. Each of these detainees went through a military hearing system and were released in 2007.

At that time, the U.S. detention system was under attack throughout the U.S. court system, and there was intense pressure on the Bush administration to release detainees who were not considered a threat.

The pressure culminated in the U.S. Supreme Court decision in the Boumediene case, in June 2008, in which the Court, by a one vote margin, held that Gitmo detainees had a right to petition U.S. Courts for a writ of habeas corpus.

Justice Antonin Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, wrote a blistering dissent (beginning at page 110 of the opinion), which appears prophetic in light of the near-miss Christmas day bombing (emphasis mine):

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....

I shall devote most of what will be a lengthy opinion to the legal errors contained in the opinion of the Court. Contrary to my usual practice, however, I think it appropriate to begin with a description of the disastrous consequences of what the Court has done today....

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional
Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today....

These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified....

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of- powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager.

It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

The Nation will live to regret what the Court has done today. I dissent....
Needless to say, Scalia was raked over the coals by the pundits because of this dissent. James Joyner had a good round-up of blogospheric reaction at the time.

Think Progress criticized Scalia's "extreme rhetoric." Matthew Yglesias, writing at The Atlantic, snarked:

I bet all those dirty hippies who said that John Roberts would be another Scalia feel sorry now completely vindicated. Just remember, when John McCain gets to replace John Paul Stevens with another member of the Roberts/Scalia/Alito/Thomas school then all your individual rights are belong to the U.S. government.
John Cole dismissed Scalia's concerns as nothing more that the wails of the "Malkin wing" of the GOP:

CNN is reporting that SCOTUS has ruled that the detainees in Gitmo have constitutional rights and can challenge their detention in civilian court. That sound you hear is six years of Republican bullshit being flushed down the drain, followed by the inevitable wailing from the Malkin wing of the GOP:

Dana Lithwick quipped:

Judging by the tone of Justice Antonin Scalia's dissent, however, you'd think that Justice Anthony Kennedy and his colleagues in the majority not only released Hamdan and his buddies from their imprisonment at Guantanamo, but also armed them with a rocket launcher and paid their collective train fare to Philadelphia.
While the two specific detainees implicated in the attempted Detroit bombing were released just prior to the Boumediene decision, the political pressure to release detainees already was being applied. And that pressure to release detainees deemed dangerous but perhaps not convictable in a U.S. court, remains in place even more so after Boumediene.

While the Obama administration has signalled a willingness to consider detaining dangerous detainees indefinitely, it has come under severe criticism for such policy. The ultimate decision will be made by a U.S. court through the new constitutional rights given to enemy combatants, using standards of review which are unclear to this day.

Oddly enough, in the case of Khalid Sheikh Mohammed, the prospect of indefinite detention after acquittal has been used as a justification for bringing KSM to a civilian trial in New York City. Those who insisted that the U.S. Court system was best able to judge guilt or innocence, want to have their constitutional cake and eat it too.

Scalia was right, and is being vindicated not only by each act of terror of released Gitmo detainees, but by the assertion that even after civilian trial, some detainees remain too dangerous to release. We may have to release them, as the after-effect of Boumedienne.

And more Americans will be killed as a result, as Scalia predicted.

Related Posts:
Schumer Right Before He Was Wrong
KSM Trial is Another Vote of Present
Which City Would You Sacrifice?

Follow me on Twitter and Facebook


  1. The (very small) comfort I take from this is that 5-4 decisions only take one vote to reverse. Trouble is, that means either Kennedy swings back, Sotomayor surprises us, or we wait until 2013 and (I hope) a different president gets to appoint a Justice who doesn't seek to apply constitutional rights to fighting a war.

    Like I said: small comfort.

    Linked at: http://tinyurl.com/yle97bb

  2. As a so-called professor of law, you should be shameful of this posting. Not only was it misleading, but also arrogantly misrepresents the Courts decision.

    Finally, the detainees were released under the Bush admin, and your reasoning for the release "political pressure", was a reason I do not remember Bush ever relenting to before. I am not a liberal who feels Bush did everything wrong, but releasing these detainees was one of them.

    Finally, Mr. Jacobsen and others, I feel you are reaping what you sow. If a person watch as a foreign entity took over their country, watch a nightly barrage of bombings and violence, watched many innocent civilians get killed or wounded, watch homes, villages, etc... burn to the ground, and never given a reason why all this was happening... well do not be surprised is reprisal is the answer. How would you feel if Ithaca were bombed relentlessly by a foreign invading entity while you helplessly watch? Would you want to retaliate against them? Just a rhetorical question and one I feel often is not asked to all the "generals" in the blogspehere who are have become so called experts on war

  3. I am giving you the benefit however in that in your haste to write this posting, you took a very complicated and legally sophisticated court ruling and narrowed it down for your readers to understand. I always felt that Scalia writing was a cowardly back-stabbing "I told you so" in case a released detainee, subjected to years of unlawful detention, get released to his homeland and finds his neighbors, friends, family, and his whole town blown away, and might find a connection with his detention and the killings. As such, this might motivate him to commit some kind of terrorist act. But what the decision was about is holding someone for six years without representation or a hearing. This is why Gitmo needed to be shut down, as it is violation of what we hold dear here in America...due process, right to a hearing, right to have a day in court. Tell me, professor of law, what are you scared of in allowing a detainee a day in court?

  4. Tell me, professor of law, what are you scared of in allowing a detainee a day in court?

    The detainees are, in essence, war criminals and do not have the same rights as American citizens. At least in my opinion, that is the way it should be and makes logical sense. They have human rights, but not US rights.

    The problem with the Patriot Act, which The Messiah upheld, is that it gives way too much power to the government at the expense of the citizens. Way too much. And as we see, when a power is given to the government, it is rarely if ever taken away unless extreme force is used.

  5. Buck. Your post suggests a myopic and immature view of world history and warfare. Never has a nation had to endure such asymmetrical warfare against an enemy that refuses to comply with long standing practices of warfare, yet seems to think they deserve protection in a judicial system established for citizens. To toss my right to be protected by my government (its primary constitutional duty)into a stew of "rights" shared with the very enemy trying (and successfully) killing Americans is abhorrent policy. While we certainly do "hold dear" our rights as citizens, including due process, we have never applied civilian due process to enemies. Your sympathy for our enemies makes you seditious, in my opinion. Going on about how awful we might feel if an enemy was bombing Ithaca?!?!?!? What possible point can you be making? Sympathy for the enemy over and above sympathy for your fellow Americans? Now tell me how patriotic you are, creep.

  6. Mark Steyn observes, correctly, that granting court protections to ununiformed enemy combatants who kill civilians incentivizes more killing of civilians.

    The whole idea of the enactment of "rules of war," that is, agreements between civilized nations, was to keep the combatants in uniform and fighting, as much as possible, other uniformed combatants. Uniformed combatants who stayed within those rules were granted certain legal protections: for example,when captured, they were kept alive until the end of hostilities and then returned to their homeland. Ununiformed combatants who snuck into civilian areas to kill non-combatant women, children, and the elderly, when captured, could be shot straightaway. No legal niceties required.

    Until unthinking, historically ignorant, holier-than-thou idealists decided to ignore the international agreements concerning the conduct of war that had been so painfully hammered out to reduce the terrorism that goes with war, criminals like KSM and the Christmas bomber and the nutcases who strap bombs to the chests of confused teenagers and send them into crowded restaurants or train stations could be put to death as soon as they coughed up whatever intelligence they had. And rightly so.

  7. ADDAM
    Sorry if I do not have a grand historical knowledge, but from what I understand, no democracy has ever been started by the point of a rifle and the napalm of a bomb. I just know this. I come from a place that had nightly police brutality, helicopters flying over my head at all times of night, feeling that my neighborhood had been invaded, had tanks rolling through the street, had my school bus shot at, etc... Nowhere compared to what is being done in Afghanistan and Iraq, but I feel the mood and the atmosphere it creates. It is not a good one and fortunately had great folks, proud Americans, who took the hate from me and turn it around. These folks are as patriotic as anyone, and probably prevented mass internal terrorism. How would you like to have to study for an exam while having fires, helicopters, and gunshots flying all around your neighborhood? Not to mentioned having the normal urban distractions, poverty, lack of food, poor housing, trucks rambling down the highway because they built the interstate right next to my house, trains running all time of night, homeless camps about a block from where I was living. Hmmm...You call me myopic. I like to think I am an American success story for overcome all this and maintaining very little bitterness. My story is just one of many from my neighborhood I grew up. Some have become professional basketball and football players. Some have had other success. But sadly, some have succumbed and been overcome by the disease of living without hope, health insurance, money, decent housing, and trying to cope and self medicate with alcohol and drugs.

  8. Buck. Your sad American story, not totally uncommon, doesn't even begin to address your truly naive understanding of human civility. Quite frankly, you just proved my point about your myopic view. Sorry buddy, the world does not revolve around your personal story. Many millions over centuries have suffered the terror of tyranny. You may have experienced economic and social mountains to clime, but you were able to be a success because you grew up in America; even if it was the seedy part that NONE of us want or defend. No sale young man. Do your homework before trying to suggest you understand what kind of world political challenge our country is currently facing. I would think, as a successful product of a serious set of challenges within this great nation, that you wouldn't want to share your liberties with upper class Islamic murderers who could care less about your struggles. You actually might find history enlightening; give it a try.

  9. Buck. Oh, and about that "no democracy has ever been started" urban talking point: it's what is called an oxymoron. Of course democracy can't be force on anyone. But tyranny can be eradicated and democracy offered as an alternative. Check out post WWII West Germany and Japan.