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 nowcompletely 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:
ACTIVIST JUDGES! ACTIVIST JUDGES!
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.
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