Chief Justice Roberts' judicial myopia and his advocacy brief posing as a judicial opinion

Allow me to preliminarily say, since I brought it up in last night's post about the Gitmo decision, that I am, this morning, a depressed Lakers' fan. Since the first game of this year's NBA Finals series, I have had this sinking feeling that the Celtics have the better team--and resemble the 1983 Philadelphia 76ers team that swept the Magic Johnson-Kareem Abdul Jabbar Lakers that year. The 76ers that year were constructed much like the Celtics this year, with the 76ers purchasing the All Star Hall of Famers Moses Malone and Julius Erving (aka Dr. J)--who were then added to their homegrown superstar Maurice Cheeks, plus the admirably dependable Bobby Jones. Last night's Lakers' collapse to the Celtics also shows this particular Laker team (other than Kobe) has no instinct to finish what they start--and really, how angry can even a Laker fan be if Kevin Garnett, Ray Allen and Paul Pierce are now highly likely to earn an NBA championship after all their years of stellar play? For the Lakers to prevail, they will have to dig deep and get more physical in driving the lanes and rebounding. So far, they have not been consistent enough in those areas.

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Okay, onto the continuation of my post from last evening concerning Chief Justice Roberts' dissenting opinion in Boumediene v. Bush, and comparing it to the majority opinion. As readers may recall, the question I found most vexing from my initial review of the various opinions in Boumediene v. Bush is this: Does the mechanism set up by the Detainee Treatment Act ("DTA") contain sufficient safeguards to allow the Congress and President to refuse to allow foreign persons any right to seek habeas corpus relief from American courts once the President has ordered such persons detained and imprisoned?

Having now read Roberts' dissent and the majority opinion, I am more convinced by the strength of the majority opinion and frankly find Roberts' dissent has more in common with an advocate's brief than a judicial opinion.

First, Roberts' shows no concern that the Executive has detained people since 2001 with no true access to the courts to have their cases heard. To argue, as he does, that the detainees should have simply waited for and then undergone the alternative process, rather than seek the right to be heard in court through a habeas corpus proceeding is judicially callous, which is to say unjust. It inverts "the innocent until proven guilty" standard that pervades American jurisprudence. To blithely answer that this is a war situation, and these persons detained are foreign combatants, is propaganda because the nature of this war against terrorism is a twlight war where the person initially detained is more akin to an apprehended criminal than a soldier. Al Queda resembles the Mob or a syndicate more than a government last I checked, and Roberts refuses to recognize that reality and is willing to give far too much theoretically oriented deference to the Executive. He also fails to give sufficient recognition to the difference between detainees summarily detained by the Executive branch and a state court defendant who had a trial and is now seeking federal habeas corpus review and relief.

Second, Roberts does make at least a superficially valid point that the regulations promulgated under the DTA provide some of the safeguards the majority opinion states are not present. However, even assuming Roberts' understanding of those safeguards is correct, the question the majority rightly asks is, from the standpoint of (1) the separation of powers among the Executive, Legislative and Judicial branches of government and (2) historically and constitutionally compelling concerns for an individual to seek habeas corpus relief when detained and imprisoned by the Executive, why is the Executive (and Legislative) branch so fired up to bar courts from hearing habeas corpus cases? Further, where is the compelling need to set up a somewhat detailed alternative which, if Roberts is correct, would end up taking just as much time and energy as a habeas proceeding?

As I try to understand where Roberts is coming from, he seems to be concerned with ensuring that classified information can be used in the proceeding that has more secrecy than a public trial. If the alternative proceeding is kept within the Executive branch, implies Roberts, then there is less likelihood of a public airing of classified information that supports the detaining of the individual person.

In answer to Roberts, history reveals that, too often, Executives and their leading officers have an exceedingly broad definition of what constitutes "classified" information, and very often abuse such a designation. And this use of "classified" information, where the defendant does not have access to the information in order to rebut or limit its application, is precisely where the alternative DTA proceeding begins to sound like a Star Chamber. Further support for this proposition is the fact that hearsay rules are essentially eviscerated (This undermines the right of the detainee to confront his/her accuser witnesses) and, no matter what Roberts tries to argue, there is, in fact, a limited judicial review of the entire procedure by the District of Columbia Circuit Court of Appeal--a Circuit Court of Appeal which is notoriously "pro-government" according to many legal experts around the nation.

What I find problematic in Roberts' opinion is that somehow he wants us to believe simultaneously that (a) the alternative proceedings are faster than habeas court proceedings, (b) the alternative proceeding is essentially the same as habeas court proceedings and (c) if the DC Circuit finds the procedure lacking or new exculpatory evidence is produced, the DC Circuit can remand to the alternative tribunal for further proceedings--which would more often undermine (a) in lengthening the time the person is detained and imprisoned.

Roberts' point that I placed in subsection (b) above is also worth discussing in more detail. Roberts argues that the DTA language supports a habeas review because the language in the DTA says the DC Circuit can review the alternative proceeding under the Constitution and laws of the United States. But if that is truly the case, then why is there a fuss at all? It's obvious that the Executive branch does not see it that way, as Roberts is implying the DTA initial trial procedure has essentially the same safeguards as a federal district (trial) court--with the only limits being that the DC Circuit Court of Appeal is the only Federal Court of review in all instances, and has essentially the same scope of review of the DTA trial level procedure as would exist in a review from a district court decision. That, however, does not appear to the intent of the DTA. As the majority opinion itself notes, there are ample statements from Congresspersons and Senators, during the process which led to the DTA being passed, that the point of the DTA was to remove habeas corpus proceedings from judicial scrutiny. This is where I find that Roberts' opinion is more of an advocate's brief than a judicial opinion. He knows that the Executive branch does not want to say what he is implying, but he wants the reader to believe the Executive branch would be amenable to such an implication.

Roberts' then ironically undermines his own dissent:

"How the detainees’ claims will be decided now that the DTA is gone is anybody’s guess. But the habeas process the Court mandates will most likely end up looking a lot like the DTA 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."

If the Court process for habeas corpus is essentially the same as the DTA's alternative process, then it should not be such a terrible thing if detainees have habeas corpus rights. But note the last sentence implicates the classified information argument (i.e. "sensitive foreign policy and national security decisions..."). Again, however, as Defense Secretary Robert Gates admitted today, the disclosures of abuse (not to mention the lies about whether there is torture of prisoners) have undermined the benefit of the doubt the Supreme Court might normally have placed in the hands of this Executive. Just as the US Supreme Court, in Ex Parte Mulligan, reached a decision at odds with Executive branch conduct after the Civil War, so too has the Supreme Court majority recognized that six or seven years have elapsed since 9/11/2001 and the government should be able to prove its cases against the various detainees held in Guantanamo Bay.

One could go on, but a reader interested in the subject may review pages 50-65 of the majority opinion and most of Roberts' dissenting opinion and draw his or her own conclusions. Suffice it to say that I believe the Supreme Court majority has done a service to the Constitution and to protecting our nation from an Executive branch that has not acted with good faith in its undermining of civil liberties. The Executive branch has abused its right, or perhaps privilege, to act without meaningful judicial scrutiny. Furthermore, Congress, in passing the DTA, fell asleep on the job to protect against Executive branch abuse.

Finally, I must say that it is almost not worth commenting on Scalia's dissenting opinion. The opinion is a essentially a political speech that exemplifies hysteria and bias. Scalia takes the minority opinions of right wing Congressmen in Congressional investigations as to what happened with regard to 30 of the hundreds of detainees as evidence that our Executive and Legislative branches should be allowed to set aside something as fundamental as habeas corpus. Scalia has no problem inverting "innocent until proven guilty" and using the word "war" in such an openended and frankly postmodern manner that Jacques Derrida might have blushed in this instance.

Personally, I cannot imagine Scalia upholding the DTA if it was approved by President Obama or President Hillary Clinton--as Scalia's political biases have already been shown in how he decided Bush v. Gore, his rulings against minority religions in free exercise cases, and his non-Originialist and non-textural reasoning in the state sovereignty opinions in the late 1990s and early part of this decade.

This latest decision of the Supreme Court was courageous, although if there is another attack on our soil by terrorists, one can already imagine that the supporters of the Cheney (Bush) administration will blame the "liberal" Supreme Court for undermining our nation's security...

(Edited; on June 23, 2008, I re-edited, for clarity, one paragraph above, which concerns Roberts' understanding of the DTA compared to the Executive and Legislative Branches' own views concerning the DTA)