The Imperial Supreme Court
By Robert Haddick : 19 Dec 2007
Critics of the Bush administration assert that America's wars in Iraq and Afghanistan, and other actions, overt and covert, in the larger War on Terror, constitute an attempt by President Bush to create an American empire in the classic meaning of that term. These critics claim that the U.S. military has seized foreign countries, and that President Bush has used the government's power to compel obedience from weaker nation-states, in the manner of past imperial powers.
Yet it is the United States Supreme Court that could in the months ahead make the most stunning declarations of U.S. authority over the sovereignty of other countries. In a list of cases now before the Court, petitioners are calling on the Supreme Court to extend the judicial power of the United States into the territory and affairs of other nation-states. Should the Court take these breathtaking steps, there will be few limits remaining to the reach of the Court's jurisdiction. It would then be up to future Presidents and Congresses to cope with the consequences of the Court's imperial ambitions.
This year's crop of Guantanamo cases
On December 5, 2007, the U.S. Supreme Court heard oral arguments in the case Boumediene v. Bush. The Boumediene case is another in the string of cases emanating from Guantanamo Bay where attorneys for the detainees there are attempting to get their clients into U.S. federal court. Before 2004 this seemed implausible; U.S. courts were not thought to have the authority to issue writs of habeas corpus beyond the sovereignty of the United States. But in the Supreme Court's first Guantanamo case, Rasul v. Bush (2004), the Court ruled that its authority extended onto the Guantanamo Bay naval base, Cuban territory, because the U.S. government exercises "exclusive jurisdiction and control" over that parcel of land.
As many predicted, that finding has opened up a floodgate for innovative lawsuits and, potentially, a stunning expansion of the Court's geographical reach. During oral arguments in the Boumediene case, Mr. Seth Waxman, the attorney for a group of Guantanamo detainees, attempted to explain his geographically expansive vision for the Court's authority:
MR. WAXMAN: Mr. Chief Justice, let me answer that question directly and then if I may finish my answer to Justice Scalia.
We don't contend that the United States exercises sovereignty over Guantanamo Bay. Our contention is that at common law, sovereignty (a) wasn't the test, as Lord Mansfield explained, and (b) wasn't a clear-cut determine -- there weren't clear-cut sovereignty lines in those days. Our case doesn't depend on sovereignty. It depends on the fact that, among other things, the United States exercises --quote -- "complete jurisdiction and control over this base." No other law applies.
[...]
JUSTICE ALITO: So the answer to Justice Ginsburg's question, it wouldn't matter where these detainees were held so long as they are under U.S. control. If they were held on a U.S. military base pursuant to a standard treaty with another country, if they were in Afghanistan or in Iraq, the result would be the same?
MR. WAXMAN: No, I think, Justice Alito, I want to be as clear about this as I can be. This is a particularly easy straightforward case, but in another place, jurisdiction would depend on the facts and circumstances, including the nature of an agreement with the resident sovereign over who exercises control.
In other words, by Mr. Waxman's reckoning, U.S. judges should be able use their discretion at evaluating "facts and circumstances" to determine what parcels of foreign territory they would like to rule over.
After hearing this exchange, Chief Justice Roberts expressed his concerns about Mr. Waxman's vision of where the judicial branch's powers should extend:
CHIEF JUSTICE ROBERTS: So to determine whether there's jurisdiction, in every case we have to go through a multi factor analysis to determine if the United States exercises not sovereignty, which you've rejected as the touchstone, but sufficient control over a particular military base? Over the Philippines during World War II, in Vietnam, and it is going to decide in some cases whether the control is sufficient and others whether it isn't?
MR. WAXMAN: Well, I don't --
CHIEF JUSTICE ROBERTS: And that is a judgment we the Court would make, not the political branches who have to deal with the competing sovereignties in those situations?
[...]
CHIEF JUSTICE ROBERTS: Mr. Waxman, this determination, whether it's sovereignty or subjugation or control of non-sovereign territory, would, I expect, have diplomatic consequences. It is, I think, typically an act of war for one country to assert authority and control over another country's jurisdiction. [emphasis added]
Who rules this patch of dirt?
In July 2005, I commented at my blog on the Supreme Court's early treatment of the Guantanamo issue. That blog post from almost two-and-half years ago seems prescient. At that time I wrote:
One wonders whether in the future the court will declare the dirt under the feet of a four-man U.S. Marine reconnaissance patrol in Afghanistan's mountains under U.S. "control", entitling an Al Qaeda fighter they may stumble across to a habeas corpus petition.
What would Mr. Waxman think of this hypothetical situation? We know he wants U.S. judges to be able to rule on "facts and circumstances" such as these.
Taking over Iraq's courts
But this term's Guantanamo cases are not the only ones bearing on the geographical reach of America's judicial power. This article from last Saturday's Washington Post discusses the cases of a Jordanian-American and an Iraqi-American being held in Iraq at prisons run by the U.S. military. One of these men has been convicted and sentenced by an Iraqi criminal court for kidnapping. The other, captured during a raid on a suspected al Qaeda safe house, is awaiting charges from an Iraqi criminal court. Through their attorneys, both men have requested the U.S. court system to stop the U.S. soldiers running the prisons from turning them over to the Iraqi courts for further proceedings.
Will the U.S. Supreme Court now see itself responsible for supervising Iraq's judicial system? These crimes occurred in Iraq and the Iraqi court system is adjudicating these cases. By running the prisons, presumably for a transitional period only, the U.S. military is acting as an agent of the Iraqi justice system, and is no way a principal in these cases. One can only imagine the howls of protest from editorial writers if the U.S. military or the Bush administration's justice department blatantly interfered with another country's internal judicial proceedings. Why should the standard be different for the U.S. Supreme Court?
Forcing the war deeper into the shadows
If the Supreme Court grants all of these habeas corpus claims, it will do so with the belief that it is extending its supposedly civilizing influence to parts of the globe it feels would benefit from that authority. Yet, its actions would have the opposite effect. In the future, no U.S. president would ever contemplate bringing war prisoners to the United States, to Guantanamo Bay, or any other place that the U.S. court system might see fit to get its hands on.
In fact, the U.S. military might find it preferable, at least less legally bothersome, to "subcontract" such things as prisoner-holding and interrogations to allied countries, or, where none are available, friendly tribes and militias. And if this doesn't reduce the legal nightmare caused by capturing detainees, the U.S. and its tribal allies might just be inclined to not take any prisoners. Why use rifles and pistols to raid a suspected terror safe-house when a laser-guided bomb will do? Such a practice would reduce the amount of intelligence U.S. military units might have otherwise received from live detainees. Or maybe not, if some judges feel especially inclined to micromanage the war effort.
During the past six years of conflict, nothing has caused more embarrassment and grief to the U.S. military than the detainees it has acquired. Knowing what it knows now, the Bush administration would never have established the detainee camp at Guantanamo Bay. Future presidents will also learn from this experience. They could be forced into a course that will result in much less visibility for future prisoners, and as a consequence, much less humane treatment.
The U.S. Supreme Court has an opportunity to make future conflicts worse. Acting like an imperial power, the Court has a chance to extend its authority over the territory of other nation-states. It has a chance to seize appellate authority over another country's judicial system. It has a chance to wreck the next President's ability to conduct diplomacy with other governments. And it has a chance to force warfare deeper into the shadows of lawlessness. Will the Supreme Court try to build an overseas empire? And who will suffer as a result?
The author was a U.S. Marine Corps infantry company commander and staff officer. He was the global research director for a large private investment firm and is now a private investor. His blog is Westhawk. He is a TCS contributing writer.
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