David , you’re right: Kennedy’s opinion in Boumediene calls Congress out. Hey, you want to suspend habeas, go ahead, but we’re not going to let you back into it by mumbling about jurisdiction-stripping. Which makes it striking that in the opening of his dissent, Chief Justice Roberts attacks by asserting that “this decision is not really about the detainees at all, but about control of fedreal policy regarding enemy combatants.” This is the classic accusation that the court is overstepping itself in a spat among the branches. And yet in his opinion, Kennedy keeps the court on a pretty narrow path, defining the right of habeas corpus (much weighty historical analysis on this front) and explaining why, because of its constitutional significance, Congress can’t wish away habeas with a lot of indirection.
Roberts is right that the big question is what happens next. But what he calls “a set of shapeless procedures to be defined by federal courts at some future date” is the Supreme Court sending this case back to the lower courts to fill in the contours of exactly the sort of due process to which the detainees are entitled. That’s standard operating procedure—if the majority had filled in all the blanks itself, wouldn’t the dissenters have accused them of overreaching? And Kennedy offers pretty specific guidance. He wants a habeas or habeaslike process that has “the means to correct errors” in the initial procedure, in this case, the Combatant Status Review Tribunal. And he wants the detainees to be able to offer their own “relevant exculpatory evidence.” The shortcoming of the CSRT is the “considerable risk of error in the tribunal’s finding of fact,” that’s what habeas is designed to protect against, and since we’re holding these detainees over the long haul (yes, six years already, as Deborah points out ), they’re entitled to that protection, too.
What about Marty’s key question : Should Congress respond now to the court? I’m curious about others’ reactions, especially Ben’s, since this cuts close to his book. My own initial reaction is that the decision today is evidence that the courts are doing their best to sort through the incredibly difficult dilemma that the Guantanamo detentions pose. I know we’ve waited six years already, but I’m willing to wait more to see what they come up with. On the other hand, we’re nowhere near the cliff’s edge of deciding whether any of these guys should or could be released. And given how dicey that question is, legislative involvement would help the court a lot, politically speaking. That is, if we could ever trust Congress to get it right.
One more question: How does this decision play out in the presidential campaign? Does it give McCain fodder and make Obama defensive? Or can the Democrats figure out a way to harness it ito the deep misgivings about Guantanamo that by now are widely shared?