Courting enemies

It seems to A-Nu that this whole Guantanamo Bay thing has been dragging on for way too long. (She imagines that the "enemy combatants" who have hanging out at Guantanamo for the past six years might share her feelings.) So perhaps the monolithic proportions of the Supreme Court's decision today in Boumediene v. Bush, 2008 WL 2369628 (June 12, 2008) -- the gargantuan 134-page length; the pervasive density of citations to seventeenth-century precedent -- are a literary device intended to mirror the duration and magnitude of the debate over the nature of process due these alleged enemy combatants.

A-Nu is willing to give the Court the benefit of the doubt on this one. She is also willing (or at least much more willing than she usually is) to tolerate parsing of authorities such as the Magna Carta, Darnel's Case, and King v. Cowle (which, for readers who didn't get that far, discusses stuff that happened in 1759 in the highly influential jurisdiction of Berwick-upon-Tweed). But A-Nu feels that Justice Kennedy's majority opinion does itself a literary disservice by weaving a web of judicial arcana while ignoring the dispute's entanglement with the lives of living humans, both those walking the streets of American cities and those sitting in cells in Guantanamo.

The opinion begins: "Petitioners are aliens designated as enemy combatants and detained at the United States Naval Station in Guantanamo Bay, Cuba. There are others detained there, also aliens, who are not parties to this suit." In other words, the opinion begins with a pedantic statement of the totally, incontrovertibly obvious. Everyone who hasn't been hunkered down in a walled compound for the past six years already knows there are folks being detained at Guantanamo who are suspected of doing vaguely-defined bad stuff. Indeed, A-Nu has reached a point where the very phrase "enemy combatant" makes her writhe about in anticipation of impending boredom and repetition of stuff she already knows.

Instead, she wishes Justice Kennedy (and the other members of the majority, too -- although A-Nu usually focuses on authoring judges, she happens to think that if you join an opinion you're accountable for its content) would tell us something we don't already know. Like, who is Boumediene? What did he do? What happened to him? Why is he sitting in a cell? How long has he been there? Does he have a wife and children, somewhere, waiting for him to come home? We finish reading the opinion (those of us who do actually manage to finish) with no idea whatsoever who Boumediene is.

Mohamed Nechla, another detainee-petitioner, is Kennedy's lone individualized example of consequences of denying habeas review. Which is a shame, because his example, limited as it is, humanizes the dispute. Nechla's employer was unavailable at the time of his military hearing to testify to his lack of affiliation with Al Qaeda and has now become available; the employer's testimony would be inadmissible under the statutorily prescribed process but potentially available in a habeas proceeding. A-Nu wonders how many other petitioners have similar stories. She wishes she knew.

Kennedy's opinion appears particularly abstract and depersonalized when compared with Justice Scalia's blunt and specific description of the "disastrous consequences" he predicts will flow from the majority opinion. "America is at war with radical Islamists," Scalia writes, following this bald statement with a tally of American lives lost in terrorist attacks on both foreign and domestic soil, including the 2,749 who died in the World Trade Center tragedy. "Last week," he reminds us, rooting the dispute firmly in the here and now, "13 of our countrymen in arms were killed." The parade of horribles continues with the account of a released detainee who later "masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes." And he plants the opinion squarely at the center of our everyday lives, reminding us that "one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat [of terrorist activity] is a serious one."

To Kennedy's credit, perhaps the abstraction of his opinion is an affirmative defense against the dissenters' charge of judicial activism. By arraying his opinion in the armor of ancient precedent and Founders' writings, Kennedy preemptively rebuts Justice Roberts's dissenting malediction that the majority opinion is really "about control of federal policy regarding enemy combatants" and Justice Scalia's accusation of "an inflated sense of judicial supremacy."

But A-Nu sees the situation differently. After all, once Scalia gets past his opening dramatics, his opinion exudes Founder-veneration and wallows in the parsing of ancient opinions. His thesis is that he knows what the Founders were thinking in 1789, and it didn't involve extending habeas protection to "enemy combatants" in Guantanamo. His dissent, in other words, is a dry, historical analysis, against which the opening parade of horribles appears alarmist and unrelated to the ensuing arguments.

A-Nu, consequently, thinks that Justice Kennedy missed out on two literary opportunities. First, he missed out on a chance to call out Justice Scalia on his histrionics, when all the Scalian frothing at the pen is blatantly divorced from Scalia's actual legal analysis. More importantly, Kennedy missed out on an opportunity to enliven the majority opinion with humanizing details about the humans whose futures are at stake, when such details are actually germane to the majority's legal analysis: What is habeas about, if not protection of the individual against government tyranny? A-Nu can only hope that future courts, engaged in future habeas proceedings, will not similarly fail to overlook the powerful literary impact of the particular.