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Eric Freedman

The Importance of Boumediene

by Eric Freedman

Having consistently benefitted from the high level of dialogue on this site, and conscious that it inhabits a scholarly field in which I do not specialize, I particularly appreciate the invitation to post a response to the Boumediene decision here.

Of course, the ruling raises numerous legal, historical, and practical points that will be the subject of hundreds of thousands of words of commentary in the days and years to come, but I hope that those do not have the effect of obscuring in a welter of detail the truly profound importance of what happened in Washington yesterday morning.

Let me start by pasting in, unedited, a comment posted about the case to the website of the Times of London:

USA has always been a great country, if not the best, this desicion prove it, once again the American democracy, constitution and division of power prove to be the most eficient way of soceity in the world. this is a grreat day for America, and the begining of the healing of this country.

Ernesto, Caracas, Venezuela

Ernesto here makes tersely the two points that I will make only a bit less tersely.


A. In terms of American constitutional law, this decision ranks in the top five of all time. It will in the future appear in constitutional law casebooks right after Marbury v. Madison and right before the Steel Seizure case. Why? Because it implements the structural thinking that permeates the Federalist.

What the Convention’s Rube Goldberg creation was supposed to achieve, somehow, was to constrain government power whether in the hands of an aroused public (forestalling the excesses of democracy) or of a single individual (whether King or President because, whether that person’s motivations were good or ill or views wise or foolish, the public had the right to set policy) while at the same time getting the needed work of government done.

So we got both:
– checks and balances, dividing power between the branches and then setting them against each other so as to prevent potentially tyrannical concentrations of power, and
– separation of powers, attempting to see to it that governmental tasks (e.g. raising taxes, impeaching the President) would be carried out by the organ(s) of government that could perform them best in light of what we were trying to achieve in the first place: representative non-tyrannical government.

B. In that context, whether an individual should or should not be imprisoned is not in any sense a political question. It is a judicial question. If the executive branch believes that an individual should be incarcerated, it has the burden of persuading neutral adjudicator (a judge, chosen jointly by the an executive-legislative process) of the legal and factual correctness of its view.

Leaving habeas corpus entirely aside, this thinking explains why repudiating the English model impeachment of public officials by the legislature extends no farther than removal from office and is not a criminal conviction, and why private citizens may not be subject to bills of attainders (legislative acts, signed by the executive, convicting individuals of crimes).

C. These are the basic structural premises of the ruling yesterday, and why my paragraph 1(A) above reads as it does.


The ruling yesterday is the best possible thing that could have happened for the position of the United States in the world, and specifically for its efforts to defeat terrorism.

That is a struggle that simply will not be won exclusively, or even primarily, by military means nor yet by economic ones. Leaving idealistic concerns entirely aside, this country simply lacks sufficient resources in either area.

To defeat ideologies opposed to ours we will have to win the hearts and minds of people around the world. That requires demonstrating in deed adherence to our professed ideals, sometimes paying a short-term practical price (just as we do when a guilty person is acquitted in the criminal justice system) in order to preserve what is in fact America’s greatest strength: the moral force that comes from being an example to the world, a country that others justifiably want to emulate, one confident enough in its own values that its President wears his amenability to the rule of law as what I have called “a republican crown” rather than casting it aside in times of stress.

If a young person living in an authoritarian nation who is asked to compare the behavior of her government in addressing perceived security threats with that of ours answers*accurately and tragically*that there is not much difference, the future of the American empire is dim at best.

Ernesto’s comment on Boumediene with which I began this post encapsulates, I hope, its significance as a burst of sunshine onto this landscape.

The United States and the world have had a very good day.