Scaliaaaaaa, I just met a thug named Scalia...

The Bournediene decision may have restored habeas corpus, but it is not the end of the argument over how the US government should be treating prisoners at Guantanamo Bay and other prisons around the world. For example, there are still the four Supreme Court justices who didn't agree with the Court's decision. It's worth understanding what's on their minds in any future national security cases before the Court.

Rather than read about the Bournediene decision, go read it. Analyses like this one are interesting, but there's no substitute for reading the Court's own ruling, including Scalia's dissenting opinion. Some of Scalia's assertions include the following:

• Habeas corpus has never extended to people who are not US citizens.
• Many former prisoners, soon after release, return to the battlefield.
• The prisoners at Guantanamo Bay were lucky to be there, instead of a worse facility in Afghanistan or wherever the US military grabbed them.
• If we give prisoners a fair trial, we risk exposing "sources and methods" during legal discovery.
• Congress and the executive branch already decided that things like indefinite detention and military courts are necessary, so who is the Supreme Court to say otherwise?

It's tempting to knock down each of these points, one by one. For example, there's no substantiation that 30 former "detainees" went straight back to killing Americans. (The Washington Post article cited, for example, identifies only 10 former prisoners.) And if recidivism were a reason to keep people in prison forever, the number of prisoners in American jails would explode even more than it has already.

Unfortunately, a point-by-point refutation can't possibly fit into one blog post, and in any case, we can focus on at least one of Scalia's most egregious and frightening Constitutional misreadings. The Bournediene case includes the latest in a series of Scalia assertions that the judicial branch has no right to check the actions of the executive during wartime.

Here's Scalia in full sneer:

But so long as there are some places to which habeas does not run—so long as the Court’s new “functional” test will not be satisfied in every case—then there will be circumstances in which “it would be possible for the political branches to govern without legal constraint.” Or, to put it more impartially, areas in which the legal determinations of the other branches will be (shudder!) supreme. In other words, judicial supremacy is not really assured by the constitutional rule that the Court creates. The gap between rationale and rule leads me to conclude that the Court’s ultimate, unexpressed goal is to preserve the power to review the confinement of enemy prisoners held by the Executive anywhere in the world.

Leaving aside the absurd claim in that last sentence, the rest of the paragraph demands serious rebuttal. I can think of no better person to refute Scalia than James Madison:

It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers

That quote from the Federalist Papers establishes the principle of overlapping powers. But how does that apply to jury trials? Happily, another author of the Federalist papers, Alexander Hamilton, addresses just this point:

A power to constitute courts is a power to prescribe the mode of trial; and consequently, if nothing was said in the Constitution on the subject of juries, the legislature would be at liberty either to adopt that institution or to let it alone. This discretion, in regard to criminal causes, is abridged by the express injunction of trial by jury in all such cases; but it is, of course, left at large in relation to civil causes, there being a total silence on this head. The specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation or necessity of employing the same mode in civil causes, but does not abridge THE POWER of the legislature to exercise that mode if it should be thought proper. The pretense, therefore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretense destitute of all just foundation.

In other words, the other branches of the government, both state and federal, might decide to change the civil courts. They cannot, however, change the nature of the criminal courts. The argument in Bournediene, Rasul, and Hamdan is not over the right of the executive branch to implement whatever criminal courts it wants, because that right does not exist. Instead, these cases are, according to the Constitution and  supporting documents like The Federalist Papers, the conformity of these courts to basic Constitutional principles.

Comments

[MSS]

As long as we are quoting Madison, his words from "Political Reflections" are perhaps even more to the point:

"...it is equally the duty and the characteristic of good citizens to keep a watchful, tho' not censorious eye, over that branch of the government which derives the greatest accession of power and importance from the armies, offices, and expenses, which compose the equipage of war. In spite of all the claims and examples of patriotism, which ought by no means to be undervalued, the testimony of all ages forces us to admit, that war is among the most dangerous of all enemies to liberty; and that the executive is most favored by it, of all the branches of power."

[Curmudgeon]

Scalia is a walking example of why judicial appointments for life are a very bad idea.