Friday, June 13, 2008
JB
In the Military Commissions Act of 2006, the President and the Republican-controlled Congress said to the Court: Stop meddling in the handling of Gitmo detainees. We do not think that habeas extends to Gitmo, and even if it does, we've produced a constitutionally adequate substitute.
In Boumediene, the Court responded: to the contrary, constitutional habeas does extend to Gitmo, and the remedy you've offered is not adequate.
It is still available to the President and Congress to try to suspend the writ, and the Court could then decide whether the suspension was successful. However, there is almost no chance that the current Congress would agree to suspend the writ. It is also likely that the Congress that passed the MCA would not have voted to suspend the writ if the choice were clearly posed on those terms and a clear statement of intent to suspend was written into the legislation. In any case, it is likely that if the MCA were presented to Congress today, much of it would not have passed.
And that is precisely the point. Boumediene is further proof, if any were necessary, that the constitutional revolution proposed by the Bush Administration after September 11, 2001 has failed.
Following the 9/11 attacks, George W. Bush and his supporters proposed a significant chance in constitutional norms, centered around increased presidential power to fight the war on terror. This vision included (1) a doctrine of preemptive war, (2) new surveillance techniques, including domestic surveillance, (3) a new system of preventive detention, including detention of american citizens without access to courts, (4) the creation of legal black holes like Guantanamo Bay and CIA black sites, (5) use of torture and torture-lite to obtain information, (6) enhanced secrecy and classification policies, and (7) a version of unitary executive theory that claimed that Congress could not constitutionally limit the President when he claimed to act under his powers as Commander-in-Chief. The last idea was also articulated in (8) the expansion of the use of constitutional signing statements, in which the President would state that he would disregard certain features of laws passed by Congress without telling the public any details about the scope or extent of his non-enforcement.
The Bush Administration sought to cement this new constitutional vision to the already regnant version of movement conservatism. It sought to reorient the conservative movement away from primarily domestic concerns after the fall of Communism and toward a focus on a muscular foreign policy and unilateral Presidentialism. This was not hard to do for two reasons: first, American conservatism needed to replace its focus on anti-Communism with a new set of foreign policy goals, pursued with equal fervor. Second, some of the theoretical moves undergirding Bush's vision of the Presidency on steroids had already been articulated in the Reagan Administration.
By 2008, we can say that this attempt at a constitutional revolution has failed. The Supreme Court resisted the Administration's attempts to get it to legitimate the new regime. Indeed, as the case of Jose Padilla suggests, the Administration tried to avoid going to the Supreme Court when it discovered that the Court would likely rule against it.
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