First, the Court left total confusion and uncertainty as to what rights these habeas petitions will vindicate. What will be the nature of the review under these new habeas rights? Will the Court review the constitutionality of the detention hearing procedures? What will be the burden of proof in these new proceedings? Will they have a factual hearing in order to try to recreate the circumstances in the field at the time of the detainee’s apprehension?
The answer is no one knows. It will all be dumped into the laps of some federal district judge and his or her law clerks. These are unprecedented circumstances and there is no way to predict what some judge might see as his or her new mandate under the constitution.
Again, it will be a federal judge — not the President or the Congress or a military tribunal — who will decide the appropriate extent to which the detainee will have access to classified military information, as just one of the more troubling examples. In other words, the branch of our government least qualified to make determinations on national security and foreign policy will now do just that. One other thing is certain. Whatever comes out of this new habeas corpus mish mash will generate a new round of appeals and our avowed enemies will work their way deeper and deeper into our court system.
Second, the majority opinion throws into question whether the tens of thousands of detainees in Iraq and the more than 1000 in Afghanistan are now entitled to habeas. Is the Court going to extend habeas protection to all foreign detainees held in foreign territory over which the United States is not sovereign, but has de facto control? We could be looking at tens of thousands of military detainee habeas cases in federal court.
Third, the Court’s decision encourages al Qaeda to continue in violation of the Geneva Conventions. The Geneva Conventions are designed to protect civilians and to reward combatants with certain protections if they abide by the Conventions. Al Qaeda specifically targets civilians and wears no uniform to distinguish themselves from the civilian population. Our policy now is to give al Qaeda combatants privileges that exceed the Conventions in terms of access to our court system without requiring al Qaeda to abide by these conventions themselves. This, of course, is an incentive for them to violate the law of war. They receive no penalty for not doing so, and by not wearing uniforms, makes any standard of proof requirement with regard to enemy combatant status more difficult for the United States. We are literally giving the enemy the means by which they can do us great harm.