My latest FindLaw column explains the disagreement between the majority and dissent in Boumediene as partly a conflict between (1) checks and balances (maj); and (2) separation of powers (dis). If that shorthand is not sufficient to explain what I mean, please read the column. Here I want to raise an issue that was called to my attention by attorney and writer Doug Parker (who, among other things, has an excellent article on Justice Kennedy forthcoming in The Green Bag). In an email to me, Doug notes that Justice Kennedy's opinion in Boumediene states: "Some of [the petitioners] were apprehended on the battlefield in Afghanistan, others in places as far away from there as Bosnia and Gambia." The opinion goes on to treat all the petitioners the same.
As Doug says, and I agree, it is hardly self-evident that battlefield captives (i.e., people taken captive on a battlefield) should be entitled to the same procedural protections as people that the U.S. and its allies have essentially arrested or abducted. In wartime, non-combatants occasionally find themselves in active theaters of war, but we can assume that most of the people apprehended on the battlefield are in fact enemy combatants. By contrast, people scooped up from civilian life have a prima facie right to liberty. To permit them to be held without access to a civilian court (via habeas corpus or an adequate substitute) would put liberty at enormous risk.
Although equal treatment for battlefield captives and other war-on-terror detainees is not inevitable, I want to offer a tentative defense of Justice Kennedy's treatment of them as such. Traditionally, prisoners of war have not been granted access to civilian courts--and given the possibility of detaining tens of thousands of POWs in a conventional war, with good reason. But POWs have protections that the Bush Administration has denied to the Gitmo detainees, and so it is fair to make the Administration pay the price: If you want to invoke the traditional exemption from civilian court scrutiny for POWs, treat your captives as POWs.
The best objection to this approach would note that terrorism suspects should not be classified as either POWs or conventional criminals; they occupy an intermediate status for which civilian courts are not the appropriate vehicle. I think there is something to this argument but it's worth noting that neither Congress nor President Bush has developed it in a coherent way: They have treated these suspects within the war paradigm, but simply as "unlawful" combatants. Ex Parte Quirin (the Nazi saboteur case) provides a place for the unlawful combatant category within U.S. law, but it is still an awkward fit for non-battlefield terrorism suspects. Accordingly, perhaps the best reading of Boumediene (and of Hamdi, Rasul and Hamdan as well) is that the Supreme Court is telling Congress and the President: If you want to create a new paradigm, we might consider how it fits within our constitutional system, but if you use the war paradigm, obey the rules we have.
Posted by Mike Dorf