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Sunday, July 06, 2008

The important point that Kennedy v. Louisiana proves about Boumediene v. Bush

This is a post in which I attempt to connect some dots between two awful Supreme Court decisions. As usual, I meander a bit en route. You can skip to the numbered paragraphs and the bold-faced stuff near the end if you grow impatient.


Friday night, on the anniversary of our nation's independence, I much enjoyed the televised presentation from Washington of the Marine Drum and Bugle Corps and the National Symphony playing a series of John Phillip Sousa marches. Some of them — "The Washington Post" and "Semper Fidelis," and of course "The Stars and Stripes Forever" — I still have (mostly) memorized from my trumpet-playing days in the Longhorn Band during college and law school. Thus, the fingers on my right hand twitched as I listened, and in my imagination at least, I could still hit and hold all the high notes, and my double- and triple-tonguing was immaculate. I'm a fan of many, many types of music, and that includes marches like Sousa's written for the classic military band.

Inevitably, I was reminded of the old cliché: "Military justice is to justice as military music is to music." Military music and military justice are splendid indeed, and their learned practitioners are certainly worthy  of respect. But they aren't to everyone's taste, and (to pick another artistic metaphor) they tend to be rendered on a more limited shape and size of canvas, using a more limited palette of colors. Sousa isn't famous for emotional violin solos or jammin' electric lead guitar riffs.


I'm reasonably certain that I never heard a single professor do much more than briefly mention the Uniform Code of Military Justice while I was at law school or taking my bar review course. I've never been in the military, and I lack the special legal training that military lawyers receive when they join any service's Judge Advocate General's corps. The bits and pieces I know come from a couple of real-life cases back in the early 1980s and the mid-1990s that required me to dip a civilian toe, as consulting civilian counsel, into the edges of those waters (to switch metaphors once again). One of those cases involved allegations that a male Army officer had raped a female Army officer, and the other involved a homicide among enlisted personnel that may or may not have been criminally culpable. Both cases potentially involved capital charges — indeed, the alleged rape case also involved allegations of oral sex, which was treated as "sodomy" under the UCMJ at the time and was also potentially a capital crime. Even all these years later, taste and privilege issues still prevent me from going into more detail about either case, even though each was among the most fascinating I've ever seen. But regarding military law in general and the UCMJ in particular, I'm perhaps a step ahead of the average American civilian courtroom lawyer or judge in that I'm quite confident about how little I know that I would indeed need to know to be an effective JAG lawyer on a regular basis.

I'm therefore completely unsurprised that in connection with the Supreme Court's decision late last month in Kennedy v. Louisiana, both sides, all the amicus briefs, and all nine Justices and their respective law clerks missed the 2006 passage of an amendment to the UCMJ which made child rape potentially a capital offense. Probably none of those lawyers themselves had been JAG lawyers, nor had they dealt with UCMJ capital cases, and they just didn't think to look at that unique and slightly obscure subset of American jurisprudence through which Congress directs our military forces how to maintain their own system of justice in parallel to the civilian justice system. Yes, someone should have thought of it; yes, it's embarrassing to them all that nobody did.

No less than the editorial board of the Washington Post now urges the SCOTUS to rehear the case (h/t InstaPundit):

The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations. That's why we think the court needs to reopen this case — even though we supported its decision. The losing party, Louisiana, still has time to seek a rehearing, which the court could grant with the approval of five justices, including at least one from the majority. The court could limit reargument to briefs on the significance of the UCMJ provision. We doubt the case will come out much differently; we certainly hope not. But this is an opportunity for the court to show a little judicial humility. Before the court declares its final view on national opinion about the death penalty, it should accurately assess the view of the national legislature.

There assuredly will be a motion for rehearing filed, and even if there's not, the Court could consider reconsidering the case on its own, sua sponte. But only a naïve wanker would expect the Emperor of America, Mr. Justice Anthony Kennedy, or any of the other four Justices who joined his opinion for the majority, to actually change their votes. At most, those five will permit limited supplemental briefing by both sides. There won't be additional oral argument. And in short order, Justice Kennedy will write a short supplemental opinion. It will announce the denial of rehearing. It will try to explain why the laws that America, through its Congress and president, has chosen to apply to its own uniformed sons and daughters are nevertheless absolutely meaningless data points in the SCOTUS' determination of America's "evolving standards of decency."

Regular readers will know that I'm a strong proponent of the death penalty for appropriate cases. Were I a state legislator, however, I probably would not support its imposition for any sort of rape case. But nobody's elected me to a state legislature, and a majority of the state legislators of Louisiana, along with its then-governor, came down in favor of giving juries the option of imposing the death penalty for the most egregious child rapes. I condemn this Supreme Court ruling, as I have all of the Supreme Court's recent Eighth Amendment decisions that purport to be based on "evolving standards of decency." That entire line of cases is a transparent lie, and an example of the most pernicious sophistry that lawyers can create: How else but through double-talk and evil magic could the least representative branch of either the federal or state governments strip the most representative branches of their intrinsic power to weigh, and then determine, what community standards are to be, and whether and how they ought to "evolve"? (Insert obligatory references to Orwell and Goebbels here.)

In his confirmation hearings, Chief Justice John Roberts talked repeatedly of the importance of "judicial modesty." In this ruling, as in several others in the past few years, Anthony Kennedy has not only joined but led the liberal wing of the Court down paths of gross judicial immodesty. What was Roberts talking about? He was talking about the exact opposite of what Kennedy's busy doing.

The abundantly plain truth is that rulings like this one come from nothing more or less than Anthony Kennedy's sense of how things ought, in general, to be. He's acting as an emperor, not a judge. And the fig leaves of judicial reasoning in which he's surrounding his decrees become increasingly transparent with each such ruling.


Kennedy v. Louisiana is a clear example of the imperious judiciary, but in the big picture, it's not nearly as important as Justice Kennedy's travesty of a majority opinion this Term in Boumediene v. Bush. In that decison, with no directly supporting precedent and a trampling of such close precedent as was on point, Justices Kennedy, Stevens, Souter, Ginsburg, and Breyer extended American constitutional rights to foreigners held by the American military on foreign soil who are alleged to have engaged in illegal warfare against America entirely from abroad. But even though it lacks international or national security significance in and of itself, Kennedy v. Louisiana does indeed prove an important point about Boumediene and the Justices who decided it — a point that I haven't seen anyone else note yet:

  1. It is impossible to dispute that during the course of this Term, Justice Kennedy and all eight of the other members of the SCOTUS were obliged, by the necessity of making a ruling in Boumediene, to consider the ins and outs, the nuts and bolts, and all of the pros and cons of the comprehensive statutory system — passed by majorities of both houses of Congress and then signed by the president — for the express purpose of providing both substantive and procedural justice to the detainees held at Gitmo and elsewhere during our nation's waging of the Global War on Terror.

  2. That system was expressly modeled upon, and in most of its substantive and procedural complexities it adheres to, the Uniform Code of Military Justice.

  3. Every member of the Court, and every one of their law clerks and staff members — including each of the five Justices in the Boumediene majority — have now been conclusively proven by their screw-up in Kennedy v. Louisiana to be utterly ignorant of even such important details about the UCMJ as what crimes under it are punishable by death.

Friends and neighbors, the same Justice Kennedy who's been shown a fool on UCMJ matters in the civilian Kennedy v. Louisiana case could not help but be equally a fool on remarkably similar matters in Boumediene v. Bush. Five of the same Justices who didn't know enough about the UCMJ to know that it currently allows for capital punishment for child rapes nevertheless felt righteously, omnipotently competent to plunge themselves and the rest of the civilian federal courts into overturning — and then taking over, via their habeas corpus powers — the UCMJ-based system for determining the fates of these military prisoners.

The emperor is not only naked — he's now shown himself to be capable of stupid and ugly acts, too.

Posted by Beldar at 05:47 PM in Global War on Terror, Law (2008), SCOTUS & federal courts | Permalink


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(1) cboldt made the following comment | Jul 6, 2008 7:00:55 PM | Permalink

-- and then taking over, via their habeas corpus powers — the UCMJ-based system for determining the fates of these military prisoners. --

By "taking over," do you mean that the Boumediene decision precludes determining the fate of all the GTMO detainees in military courts (including the use of trial conduct, evidentiary, and other rules that are substantially different from criminal law in a civilian Article III court)?

(2) cboldt made the following comment | Jul 6, 2008 7:06:11 PM | Permalink

Aaargh - I tried to make my question unambiguous, and failed.

What I'm wondering is whether or not you are saying the Boumediene decision precludes military trials, period. In other words, if some of the detainees are convicted in a military trial, does that comport with your statement?

(3) Beldar made the following comment | Jul 6, 2008 10:12:30 PM | Permalink

cboldt: We know that Justice Kennedy's opinion asserts that the federal courts are going to have the power, via rulings on habeas corpus petitions, to do everything — from releasing the prisoners outright through reviewing, and presumably in some instances affirming, death sentences. If the detainees have the right not to be deprived of habeas corpus petitions without invocation of the Suspension Clause, then what other rights created by the United States Constitution do they not have?

What nobody knows — emphatically including Justice Kennedy and his fellow Justices in the majority, more the fools them — is just how intrusive the federal courts are going to be, and what they will require, and where they will find legal sources for their decrees if they are to differ in any respect from what's constitutionally required for the civilian justice system.

I don't think that the Supreme Court has totally preempted the playing field; i.e., I don't think they've forbidden commission trials outright. Conceivably, the military judges could start grafting additional constitutional protections for accused defendants onto the structure created by Congress in the MCA until, at some point, the federal courts (and ultimately Justice Kennedy) would be satisfied.

But where that point is, or even for sure whether there is one, I don't think anyone can know right now. That's just my guess. Yours may be entirely different, and so too may be any of the dozens of federal district judges who are going to get habeas petitions challenging every jot and tittle of every CSRT and trial. And no one is going to know for years, until Justice Kennedy grades the guesses, and the muddled attempts that have been made at justice on the basis thereof.

Chaos now reigns. When the source of constitutional law is the whim of Anthony Kennedy — he who counts calendar pages as a purported source of constitutional rulings when by his own admission, supporting precedents aren't at hand for what he wants to do, he who defines an "evolving" national consensus in terms of how he feels, deep in his soul, on any particular day — and when even he has punted to the district courts, then no one can know what is and what isn't legal. He might as well have ended the Boumediene opinion with the only declaration that everyone, right or left, must agree with today: "L'État, c'est moi."

(4) cboldt made the following comment | Jul 6, 2008 11:46:39 PM | Permalink

-- and so too may be any of the dozens of federal district judges who are going to get habeas petitions challenging every jot and tittle of every CSRT and trial. --

As long as the government keeps the detainee action in GTMO, it has to deal only with the 15 active judges in the District of DC, and then the DC Circuit on appeal.

The judges in the District of DC are (for the most part, Judge Leon is holding onto the 18 cases on his docket) pooling the common issues raised in the CSRT-habeas petitions, in order to reduce the range of decision.

The District Court is also working with the DC Circuit in an effort to expedite resolution of the CSRT-detainee issues now pending at the appellate level, before rendering decisions at the District level, so CSRT cases involving those issues won't make a second trip through the process.

Hamdan is moving to outright block Military Commission trials as deficient in legality and jurisdiction. He won that issue last time because Congress had been AWOL in creating the Military Commissions. At any rate, his current motion sets up the full parade of horribles (not just deficiency in creation of the Military Commissions), and the District Court is on the hook to describe what sort of procedural and substantive rights will attach to the Military Commissions.

No question, the courts have stepped into at least an oversight role on all of the detainees. Thank you for clarifying what you meant by "taking over" the proceedings.

(5) Beldar made the following comment | Jul 7, 2008 12:37:21 AM | Permalink

cboldt: Congress and the president gave the federal courts an "oversight role." What Justice Kennedy and his four compadres have seized is far more than that, but no one knows yet just how much more.

(6) cboldt made the following comment | Jul 7, 2008 6:51:02 AM | Permalink

-- What Justice Kennedy and his four compadres have seized is far more than that, but no one knows yet just how much more. --

I think ones sense of "how much more" has been "seized" will depend on the sufficiency and reliability of evidence on a case-by-case basis. In the cases where the government provides sufficient evidence for detention and/or conviction, the intrusion is more apt to be characterized as "oversight" rather than as "taking over."

In some ways, the government is in a position of control over the "intrusiveness" of the court. When the court sees a "fair" process, supported by sufficient evidence, it tends to endorse the process and the outcome. In those cases, it's perceived as "not very intrusive."

The government probably views the Parhat case as wrongly decided; that the court "took over" a decision that it has no right to monkey with. Yet others think the court's review as to sufficiency of evidence was within its power, and that the court's decision is more in the nature of oversight.

(7) Boyd made the following comment | Jul 7, 2008 9:19:34 AM | Permalink

A comment and a question:

At the risk of sounding like the persnickety engineer that I am, "...rights created by the United States Constitution..." might be more accurately presented as "...rights affirmed by the United States Constitution..." or "...rights guaranteed by the United States Constitution..." Sorry, I'm awfully anal-retentive when it comes to the origin of our rights under the Constitution.

When one branch of the federal government inappropriately wrests powers from the other two branches, where those powers legitimately belong, what's the corrective action? How does that get fixed without horribly breaking our system of government?

(8) Gregory Koster made the following comment | Jul 7, 2008 3:45:59 PM | Permalink

Dear Boyd: My own notion is that in this case the corrective action won't be needed. Let bodies start piling up on American or European soil and Kennedy will flee, bawling that he was misunderstood, and this is a matter for Congress and the Prez. To be sure, the court ordered busing cases point the other way. But there, the fatalities were small, and in any case, the dolts in the district courts had to handle all the strain. The other way this action will correct itself is for the present 4-1-4 balance to shift. Let Roberts, Alito, Thomas, or Scalia kick the bucket, and Kennedy will be unceremoniously thrown on the ash heap by the new liberal majority. It will be a liberal majority: Let Obama be elected, and he will ram nominees in the manner of Larry Tribe through Congress. All those who shriek about the four radical hard left justices now on the bench will get a hearty dose of castor oil, administered at one hundred pounds per square inch pressure. But let McCain in as Prez, and the results will be no better than even odds that a sensible justice can be gotten through. See e.g. Nixon (1 for 4 appointees, Rehnquist) Ford (0 for 1), Reagan (1 for 3, Scalia), Bush 41 (1 for 2, Thomas.) Bush 43's record looks much better---but he had a GOP Senate when he made his appointments, something no other GOP president has had, save Reagan for Scalia and O'Connor. Without a GOP majority in the Senate, getting a sensible nominee through is a mug's game.

Boyd, I agree with you about rights being guaranteed, not created by the Constitution, but it is a fine point. Let the powers that be disagree with you, and the individual is in for a fight. See e.g. Susette Kelo, who thought she had a right to the land and property she had purchased. Justice Stevens & Co. gave a hearty laugh, snickering that they had to defer to the rapacious gang that runs the local government of New London Conn. To be sure, such deference is not on display in other decisions, such as we are discussing here, but fig leaves are good enough for the boobs who have to face the consequences of Supreme Court decisions. This is why I think that deaths resulting from the idiotic Boumadiene decision will reverse it fast, provided only that they occur on American or European soil, and the hell with precedent.

For Mr. Dyer: No wonder I read your blog. Besides the high quality of your posts, you are a Sousa fan. I can't match you in playing them, but at least I can listen. Have you ever listened to Keith Brion's interpretations, available on the Naxos label at Amazon? I should think that the trumpet solo in "O, Warrior Grim," from his EL CAPITAN might change your mind on Sousa's emotional power in a non march setting.

Sincerely yours,
Gregory Koster

(9) cboldt made the following comment | Jul 17, 2008 2:01:34 PM | Permalink

On the DC District Court hearing Hamdan's arguments as to why his military trial should not proceed - Hamdan lost the argument today. Judge Robertson of the District of DC ruled that the trials at GTMO, by military commission, are to proceed.

See HowAppealing.law.com, which links to a SCOTUSblog and AP story.

Judge Roberts is the one that ruled in 2004, that Military Commissions crafted other than by Congress, didn't pass constitutional muster. His decision was reversed by the DC Circuit, and reinstated by SCOTUS.

(10) cboldt made the following comment | Jul 18, 2008 1:44:04 PM | Permalink

Judge Robertson's Memorandum Order, refusing to interrupt the Military Commission trial of Hamdan, has been issued.

Excellent summary by Lyle Denniston at SCOTUSblog.
"Judge: “World’s eyes on Guantanamo”; Lawyers: no appeal now

From Judge Robertson, "But Article III judges do not have a monopoly on justice, or on constitutional learning."

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