Obsidian Wings: Boumediene For Dummies — a nice analysis of what the Bournediene ruling said, its implications, and why it’s important.
Or, in short: if we accept the government’s argument, we would concede that it can legally do what it has tried to do in fact: to create a legal black hole in which it can act outside the law and the Constitution. We cannot do that.
This is, to my mind, the most important holding in the opinion. It defends the separation of powers against an attempt by the Executive to free itself from the constraint of law. That is immensely important.
There is a further question: granted that the detainees have habeas rights, they might not be entitled to a habeas petition now had they been afforded some procedure that was an adequate substitute for habeas proceedings. The Court would normally punt this one back to District Courts, but it declines to do so, on the grounds that due process for these detainees has already been delayed too long, and the separation of powers questions this issue raises are too important.
The Court says: the procedures provided under the Detainee Treatment Act are not adequate substitutes for habeas since (p. 60) “we see no way to construe the statute to allow what is also constitutionally required in this context: an opportunity for the detainee to present relevant exculpatory evidence that was not made part of the record in the earlier proceedings.”
The whole Sword of Damocles regarding SCOTUS justices — who gets to pick the next one amid an aging population — has been an argument going on for a couple of decades, almost to the point of people tuning it out because it’s invoked so often. But 5-4 decisions like this continue to point out how critical just that decision is. Justices do tend to be annoyingly independent (from their appointers) once on the bench (of the 7 judges on this “liberal” court, only two were picked by a Democrat). But it’s worth noting that of the four dissenters in this case — Roberts, Scalia, Thomas, and Alito — two were picked by the current president, and are the avowed model of the sorts of justices that McCain says he’d pick if he were elected.
I just don’t see how we can afford that.