Although complicated, the facts leading to Boumediene v. Bush may be somewhat succinctly stated. The 2001 Authorization for Use of Military Force (AUMF) passed by Congress in the wake of the September 11 attacks gave President Bush authority to seek retribution on Afghanistan’s Taliban-led government. In the subsequent war, prisoners were kept in Afghanistan prisons or shipped to the American Naval Station at Guantanamo Bay. These prisoners of war were styled “enemy combatants,” a status crafted by the executive branch to bolster claims that the POWs were not to be granted any of the rights determined by the Geneva Conventions. The Supreme Court ruled in Hamdi v. Rumsfeld (2005) that this situation was intolerable, and that the executive branch could not make such a determination by itself. Congress responded with the Military Commissions Act (MCA) of 2006, which (along with providing legislative backing to the executive branch’s military commissions) stripped federal courts of habeas corpus jurisdiction.
So, when several detainees petitioned for writs of habeas corpus, Boumediene among them, the D.C. Court of Appeals dismissed the petitions because Congress had stripped the court of its jurisdiction. It was precisely this issue that came before the U.S. Supreme Court in Boumediene v. Bush. And the Supreme Court’s firm answer (if predicated on a very slim majority) is that habeas corpus is a judicial power that Congress cannot suspend unless within the bounds of the Constitution.
Although the opinions are awash in technical legal argument, both the opinion of the court and the dissenters rely on competing historical narratives. Justice Kennedy, both the swingman and the author of the majority opinion, constructed a sweeping historical narrative of the writ of habeas corpus that spans eight centuries. Relying on the amicus brief filed by legal historians, Kennedy described the principle of habeas corpus as originating on the field at Runnymede in 1215, of growing up in tandem with the king’s power in the fourteenth century, and emerging in the seventeenth as a judicial check on the absolutist pretensions of the Stuart monarchs. The various political and military conflicts between king and parliament in the seventeenth century are cast by Kennedy as crucial in the development of habeas corpus as a check against arbitrary power. The victory of parliamentary forces and the constitutional settlement of 1689 reaffirmed the common law rights of trial by jury and habeas corpus and created a lasting tradition for Anglo-Saxon constitutionalism in the face of arbitrary power. American patriots breathed this same rhetoric in the Revolutionary period a century later, and insured in their Constitution that neither Congress nor the executive could suspend habeas corpus except in very clear cases (rebellion or invasion).
Kennedy’s narrative is generally correct, even if it lacks a certain amount of historical sophistication. It is right where it matters most—for instance, in identifying the writ of habeas corpus’s change from a prerogative writ concerned with power (and solidifying the king’s power in the fourteenth century) to one concerned with liberty in the seventeenth century. And Kennedy’s narrative is aspirational, one that recognizes the substance of American revolutionaries’ very real commitment to liberty and their desire that the Constitution be interpreted in this way.
Compare this with the narrative sketched by Antonin Scalia. To quote from his dissenting opinion: “America is at war with radical Islamists.” This is a war he traces back to 1983 and the bombing of the Marine barracks in Lebanon that killed 241 American soldiers and which moves
to American soil in 2001. The enemy (always referred to by Scalia in the singular) “has threatened further attacks against our homeland.” He adds that one need only to “board a plane anywhere in the country, to know that the threat is a serious one.” We have sent our armed forces “against the enemy, in Afghanistan and Iraq.” For Scalia, the decision reached by the Supreme Court today “will make the war harder on us. It will almost certainly cause more Americans to be killed.”This is Scalia’s narrative—blood, war, and executive power. Accusing the Court of playing a “bait-and-switch” game with the president, he has linked the judicial check to a war apparently begun in 1983 in Lebanon and which has presumably a beginning, middle, and (eventually) an end. But the ambiguities and distortions that lurk behind Scalia’s ham-fisted history belie his argument. Hezbollah (the perpetrators of the 1983 attack on the U.S. Marines barracks) and Al Qaeda are two very different organizations that come from rival Muslim sects. They do not cooperate. Linking such attacks on U.S. troops abroad is at best a callous display of ignorance. At worst it is intellectually dishonest. At the very least, his refusal to consider the civilian casualty count in the Middle East—those who have born the brunt of our war on terror as well as the brunt of terrorist attacks. Such facts are apparently nuisances to Scalia. So much the worse for historical truth.
Nonetheless, Scalia’s positioning of historical narrative before legal argument in his dissent is an indication of just how important historical narrative is. Why else would he begin his dissent with such a narrative? His legal analysis is formal and chilly, and it fails to persuade in the face of basic constitutional principles, let alone the litany of human rights abuses that we are perpetrating in an attempt to “protect” us. Scalia must know this, otherwise he would not need to justify his legal reasoning with an historical narrative that places Boumediene v. Bush into the context of a perpetual war (a war going on 25 years long, if Scalia’s narrative is accepted). Only then can the government’s extreme action of suspending habeas corpus and trying foreign nationals by military commission make sense. But the colossal failure of his historical narrative intellectually and morally indicates that not all narratives are equal. And our ability to receive them critically and to reject them when they fail is a key component in the survival of constitutional democracy.
