One of the classic introductions to law and to the study of law is The Bramble Bush by Karl N. Llewellyn. After forty-five years, I no longer have a copy. However, the preface contains a little ditty, which as best I remember it goes something like this:
I leapt into a bramble bush and scratched out both my eyes.
When I saw what I had done, with all my might and main,
I leapt back in the bramble bush and scratched them in again.
Somehow, that seems pertinent here.
According to Senator McCain, the Supreme Court's 12 June 2008 decision granting habeas corpus rights to enemy combatant detainees at Guantanamo was “one of the worst decisions in the history of this country,” even though he had not had an opportunity actually to read it. Senator Obama, on the other hand, said it was just peachy because it was all President Bush's fault anyway. Most likely, he hadn't had an opportunity to read it either, even though he is apparently a constitutional scholar of some renown.
Meanwhile, the Chief Judge of the 9th U.S. Circuit Court, sitting as a trial judge (rather than in his normal role as an appellate judge), granted a mistrial in an obscenity case over which he was presiding because he himself had posted rather nasty bestiality porn on his own official website. As we all know, the Ninth Circuit Court of Appeals has only the best and brightest jurists; it may well be one of the sources from which Senator Obama, should he become the President of the United States, will pick his new Supreme Court justices. Having read the Guantanamo Decision, that could be an improvement over the justices in the majority there.
Although I am a recovering attorney, and religiously attend Attorneys Anonymous meetings, I am not now, nor have I ever been, a constitutional scholar. Perhaps that is why I found the majority opinion in Boumediene et al v. Bush, President of the United States hopelessly confusing and, with all due respect, silly.
The Court, in the majority opinion authored by Mr. Justice Kennedy, found no basis in precedent for its decision. A dissenting opinion, authored by Mr. Chief Justice Roberts, in which Justices Scalia, Thomas and Alito joined, as well as a separate dissenting opinion authored by Mr. Justice Scalia in which the other dissenters joined, pointed this out forcefully. As Mr. Chief Justice Roberts notes,
Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law's operation. And to what effect? The majority merely replaces a review system designed by the people's representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority's ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants. . . . [T]he habeas process the Court mandates will most likely end up looking a lot like the . . . [Detainee Treatment Act of 2005 (DTA), §1005(e)(2)(A), 119 Stat. 2742.] system it replaces, as the district court judges shaping it will have to reconcile review of the prisoners' detention with the undoubted need to protect the American people from the terrorist threat--precisely the challenge Congress undertook in drafting the DTA. All that today's opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary (emphasis added)
Translated into normal English, the majority has made a pig's breakfast of the whole matter, and it is impossible accurately to predict what will happen next, other than that inordinate delay in adjudicating the rights of the detainees will result.