Morning Bell: The Five Generals

Conn Carroll /

In the 2006 case Hamdan v. Rumsfeld, four members of the Supreme Court joined a concurring opinion by Justice Stephen Breyer that said:

Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary. … The Constitution places its faith in those democratic means.

Dissenting in yesterday’s 5-4 Boumediene v. Bush decision, which found the subsequent Military Commissions Act of 2007 unconstitutional, Justice Antonin Scalia retorts: “Turns out they were just kidding.” The entirety of Scalia’s dissent is a must read for anyone who cares about the lives of American soldiers and the separation of powers, but here is a quick condensation:

The President relied on our settled precedent in Johnson v. Eisentrager when he established the prison at Guantanamo Bay for enemy aliens. … Had the law been otherwise, the military surely would not have transported prisoners there, but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. …

At least 30 of those prisoners released from Guantanamo Bay have returned to the battlefield. … It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. … These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary ruled that go beyond what Congress has specified. …

Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows the least about national security concerns that the subject entails.

For a thorough examination of all the issues surrounding detainee treatment in war with a stateless enemy, check out our webpage Detention of the Enemy During Wartime.

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