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From Michael:
June 25, 2008
I wrote the attached article [see below] and submitted it to the magazine, Marine Corps Gazette, in the hopes that it will be published. I am sending it to all of you to read as well, because I think America needs to know about just how bad this decision was.
Of Writs, Rights and Wrongs...The Supreme Court Leaves More Questions Than Answers.
by Captain Michael Berry, USMC
Of the three branches of our federal government, the Judiciary branch has perhaps the least influence on military affairs. Congress possesses the sole power to declare war, while the President acts as Commander in Chief of our military, and may deploy our armed forces for short durations. The Supreme Court of the United States routinely decides cases of national and historic significance. Yet seldom do those cases have a direct impact on the Marine Corps and the military. Nevertheless, on June 17, 2008, in Boumediene v. Bush, the Supreme Court announced a decision that will most certainly impact the Marine Corps and the military. By a vote of 5-4, the Court ruled that unlawful enemy combatants detained at Guantanamo Bay, Cuba, and presumptively other places of detention such as Iraq’s Regional Detention Facilities, have the right to challenge the basis of their detention in federal courts. What does this mean for the Marine Corps? In the author’s opinion, history will reveal that the Boumediene decision will have a negative impact on the Marine Corps. Before delving into the far-reaching consequences of the Boumediene decision, it is important to understand the history leading up to the Court’s decision.
The Constitution of the United States guarantees certain rights and privileges to American citizens and aliens on our soil. Year after year, high school students across the nation learn that “no person shall be deprived of life, liberty, and or property without due process of law.” Embedded within this “due process of law” is the notion that the government may neither detain nor arrest a person indefinitely, without presenting to a judge or magistrate evidence in support of arrest or detention. Generally speaking, a police officer cannot arrest someone and place them in jail indefinitely without reason. The jailed person has the right to know the reason they are in jail and, perhaps more importantly, they have the right to challenge that reason. This is frequently referred to as a writ of habeas corpus.
Historically speaking, the Constitution has generally applied to U.S. citizens or aliens (non-citizens) on sovereign U.S. territory. Common sense dictates that our Constitution should not apply to a Canadian citizen living in Canada. During World War II, for example, German citizens were captured overseas, detained by U.S. forces, and were to be tried before U.S. courts. They challenged their detention and the Supreme Court, in Johnson v. Eisentrager, determined that, despite the fact that the detention facility was under complete U.S. control, the fact that those captured and detained were German citizens, coupled with the fact that they were captured on foreign soil, meant that the U.S. Constitution did not apply to them. Thus, the mere fact that they were held in U.S. controlled territory did not equate to the right to challenge their detention in federal court.
The Constitution does, however, cite occasions during which writ of habeas corpus may not apply. Specifically, only Congress may suspend the right, and it may only do so during times of “rebellion and invasion, when the public safety may require it.” This is typically referred to as the Suspension Clause. However, it is generally accepted that the Suspension Clause only applies to domestic settings. It is inconceivable that a rebellion within or invasion of the United States could occur on foreign soil, our foreign embassies notwithstanding. It is only logical to conclude that if the suspension of particular right only exists in the domestic setting, then the existence of the right itself must likewise only exist in the domestic setting. It would not make sense to create a right that applied both domestically and abroad, only to declare that the right could only be suspended domestically. That would conceivably leave us with the following paradox. Imagine two U.S. citizens, one living in the United States, one living overseas. Both are detained by U.S. authorities and are detained on U.S. territory. The citizen living outside the U.S. would be able to challenge their detention, whereas the citizen living in the United States would not have that right.
Boumediene is therefore historic in that the Court has apparently decided that habeas corpus now applies in the non-domestic setting. The detainees held in Guantanamo Bay have been, with very few exceptions, non-U.S citizens, captured on foreign soil, not to mention the fact that they were usually conducting or supporting hostilities against the United States. These facts seem to parallel those in Eisentrager. Perhaps the only discernable difference between those captured and detained on today’s battlefield and those in Eisentrager, is that today’s detainees do not belong to the military of a sovereign state. Most notably, members of Al Qaeda and the Taliban fall into this category. In legal-speak, we refer to such persons as unlawful enemy combatants. In Marine-speak, we simply refer to them as insurgents.
In 2006, Congress passed the Military Commissions Act, declaring amongst other things that, despite their status as unlawful enemy combatants, detainees shall be treated humanely (i.e. not tortured). In the event that a detainee challenged their status as an unlawful enemy combatant, their status would be determined by a Combatant Status Review Tribunal. Congress also declared that certain provisions of the Geneva Conventions did not apply to unlawful enemy combatants, nor did they have the right of habeas corpus.
The Boumediene Court declared the Military Commissions Act unconstitutional. The Court determined that Guantanamo is indeed de facto sovereign U.S. territory, because it is under the exclusive use and control of the United States. In a break with its own precedent, the Court held that the fact that detainees were neither U.S. citizens nor were they captured on U.S. territory was not enough to deny them habeas corpus. Consequently, those detained at Guantanamo are now subject to the Constitution and its protections, including habeas corpus. In a sea change, the Supreme Court departed from its Eisentrager doctrine, in which non-U.S. citizen enemy combatants, captured and detained abroad, had no constitutional right to challenge their detention in federal court. Instead, citing the fact that some detainees have been at Guantanamo for lengthy periods of detention (by American standards), some as long as six years, the Court concluded that at least some of the detainees had been kept there unconstitutionally. The Court further stated that the Combatant Status Review Tribunal was not a sufficient substitute for habeas corpus. Apparently, the only remedy was to grant the right of habeas corpus, thereby permitting access to U.S. courts.
What does this mean for the Marine Corps? It means that unlawful enemy combatants who have been captured and detained at Guantanamo Bay now have access to our federal judiciary in order to challenge their detention. This is bad news for the Marine Corps. While the Court made it clear that the Military Commissions Act is unconstitutional, it did not clarify just what is constitutional when it comes to detainees. It is difficult to discern a clear difference between a Regional Detention Facility in Iraq and Guantanamo Bay. Is a Regional Detention Facility, which is funded, operated, and under the exclusive control of U.S. forces also de facto sovereign U.S. territory? If so, then don’t the detainees housed in those facilities also have a constitutionally-guaranteed right of access to our courts? And if so, what rules apply? The now unconstitutional Military Commissions Act explicitly stated that “hearsay evidence” was admissible. Under the Federal Rules of Evidence, barring an exception, hearsay evidence is most assuredly inadmissible in federal court. Does that mean that evidence used as the basis for detention that fails the Hearsay Rule is now inadmissible? If so, what is the appropriate remedy? Do we simply open the cell and let the detainee go free? Presumably not, but the fact remains that the Court failed to answer these and other important questions. The failure to do so will undoubtedly impact Marines on the battlefield.
Now, not only must our Marines concern themselves with the reason for which they detain someone, but they must also now consider the consequences of a potential challenge to their decision to detain. The decision to detain is frequently carries tactical considerations as well as legal considerations. Our young Marines are primarily concerned with accomplishing their mission and insuring the safety and welfare of their fellow Marines and of innocent civilians. Combat operations do not occur in a vacuum, and decisions must be made rapidly, frequently with inaccurate or incomplete information. The battlefield is a world away from the secure, sterile confines of a federal courtroom. It is unreasonable to expect our Marines to understand the Federal Rules of Evidence and their application when they detain a person. The Boumediene Court expects otherwise, or at the very least, has left unclear just what is expected. The end result is that the decisions of our Marines who are put in harm’s way may now be second-guessed thousands of miles from the hostile circumstances in which those decisions were made. The Supreme Court has forced our Marines to become law enforcement experts. The Marine Corps, as we all know, is not a law enforcement institution. The Boumediene decision has nonetheless squarely placed the Marine Corps in the law enforcement business. Marines will be weary of detaining a person without an “airtight case” replete with confessions, evidence and witnesses. Marines will be hesitant to detain someone out of fear that the evidence they have may not be enough. Such hesitation has no place in combat. Some Marines will seize the initiative and legitimately detain an unlawful combatant, only to see their decision criticized and their captive released for want of sufficient evidence, thereby re-exposing them to a hostile enemy. The scenarios are endless.
In conclusion, the Supreme Court has overstepped its constitutional boundary. When he was undergoing the confirmation process, Chief Justice Roberts, who voted to uphold the Military Commission Act, famously stated that the role of a judge was akin to that of an umpire in baseball. His job is to call balls and strikes, not step up to the plate and bat. With the Boumediene decision, the Supreme Court has undoubtedly and unabashedly stepped up to the plate and is swinging for the fences. The unfortunate result is bad for Marines, bad for the Marine Corps, and bad for America.
The kids discovered recently that you don't have to sit on your bottom in a swing to have fun on it. I personally enjoy this new discovery because I don't have to push constantly or do underdogs over and over again. 
I believe this is a swing for special needs kids and is supposed to be for one kid only, but this works and it doesn't cause fights over who goes first. However, I always check to be sure there are no special needs kids around before I let my kids use it. 
Here's Roman enjoying bouncing.
