War Fighting by Judiciary

I argued, last semester, that the Supreme Court's reasoning in the detainee cases of Rasul and Boudmediene would likely cause problems.  My professor didn't agree.  He did not appear to think the reasoning holding detainees had certain rights because they were being held in Guantanamo Bay - a place the U.S. does not have actual de jure sovereignty over, but rather de facto control - would be extended to the battlefield.

I specifically raised the specter of the logic in those two cases being extended to Bagram Air Force base in Afghanistan, echoing the dissents in the two cases.  Any U.S. military base around the world, I argued, is arguably under de facto American control, and would likely become subject to the strictures of the court's rulings - even if they were in an active combat zone where such strictures would hamstring commanders on the ground.

Now, it seems a federal judge has pushed the envelope just as I anticipated:

Judge John D. Bates (a George W. Bush appointee) ruled that alien combatants detained by our military in Bagram, Afghanistan — an active combat zone — are entitled to petition the federal courts for their release.

Let’s be clear about what this means. Judge Bates is saying that, under the Supreme Court’s rulings, the jurisdiction of the federal judiciary extends everywhere in the world, without limitation, and it includes the power to micromanage wars as they are being fought.

Kudos to the editors of National Review for homing in on this judicial leap.  The textual distinction may appear to be minimal, but the real world consequences of the decision are unfortunate:

Predictably, Judge Bates has taken the next step. He reasoned that if the font of federal court jurisdiction is not U.S. sovereignty but de facto U.S. control, the Bagram military base in Afghanistan, which we firmly control, is no different from Gitmo. There was, however, a major difference: Bagram is in an active zone of combat. This was a circumstance even the Boumediene majority suggested was entitled to special consideration. Bates gave it none. And if Boumediene commands that everyone within U.S. court jurisdiction is vested with U.S. constitutional rights, why shouldn’t a prisoner in Afghanistan have the same privileges as a prisoner in Gitmo? Or, by Bates’s logic, as a prisoner in Pittsburgh?

The result? Battlefields are now crime scenes, and the U.S. military will be forced to behave like a team of police investigators. If they want to capture enemy agents rather than kill them, our troops had better carefully rope off the crime scene, meticulously gather the physical evidence, record witness statements, administer Miranda warnings, and make certain a contingent of defense attorneys is available for interrogation purposes. That isn’t how wars are fought.

I hope the Boumediene majority's recognition of different considerations when detainees are held in a combat zone comes to the fore - and I hope the case is appealed and reversed with that distinction in mind.