Roberts Summarizes Boumediene: No One Wins
I haven’t had time to come up with anything interesting or cogent about the expected but still disturbing result in Boumediene. And we have an all-star cast of guest-bloggers ready to comment, as Roger points out below. But as a place to begin, it is worth checking out Chief Justice Roberts’ powerful conclusion to his dissent, which I think accurately characterizes the likely result of this decision: more muddle and more litigation.
So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases,
followed by further litigation before the D. C. Circuit— where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine— through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636 (2006) (BREYER, J., concurring), has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.