Scalia’s ‘Apocalyptic’ Dissent Warns of American Deaths
Two justices wrote separate dissents to yesterday’s decision giving Guantantamo detainees a right to habeas corpus, but Justice Antonin Scalia’s was “the more apocalyptic,” the New York Times reports.
Scalia and Chief Justice John G. Roberts Jr. wrote dissents, but they also signed each other’s opinions. The two other dissenters, Justices Clarence Thomas and Samuel A. Alito Jr., signed both opinions.
The Times described Scalia’s dissent as “biting” while Legal Times called it “bitter.”
Scalia wrote that the majority decision was based on “an inflated notion of judicial supremacy” and will result in “devastating” and “disastrous consequences.” Scalia referred to news reports that some detainees who were already released have returned to the battlefield. The decision “will almost certainly cause more Americans to be killed,” he wrote. “The nation will live to regret what the court has done today.”
Roberts said the decision “is not really about the detainees at all, but about control of federal policy regarding enemy combatants.” The public will “lose a bit more control over the conduct of this nation’s foreign policy to unelected, politically unaccountable judges.”
The majority opinion by Justice Anthony M. Kennedy found that habeas rights applied to the detainees, and the government had not provided an adequate substitute. The governing statute, the Detainee Treatment Act, allowed the U.S. Court of Appeals for the District of Columbia Circuit to hear reviews of tribunal decisions on whether detainees were enemy combatants.
But Kennedy wrote that detainees do not have the assistance of lawyers before the combatant review tribunals and there are no limits on the admission of hearsay, creating a significant risk of errors. Yet the D.C. Circuit reviewing a tribunal decision was not given explicit authority to order the release of a detainee and was not allowed to hear a detainee’s additional exculpatory evidence discovered after the tribunal hearing.
The opinion is Boumediene v. Bush (PDF posted by SCOTUSblog).
