Creating Legal Rights for Suspected Terrorists: Is the Court Being Courageous or Politically Pragmatic?

Abstract

This Article challenges the scholarly consensus that the Supreme Court’s recent decisions invalidating the Bush Administration’s treatment of detained suspected terrorists – Hamdi, Rasul, Hamdan, and Boumediene – signal a permanent judicial shift toward courageously protecting constitutional liberties during wartime. On the contrary, history suggests the likelihood that five pragmatic Justices seized a rare opportunity to vindicate individual rights against an unpopular President who asserted broad authority long after a military emergency (the 9/11 attacks) had passed, but that the Court will retreat when the next crisis arises and a strong President responds forcefully.

This pattern has been recurrent. The Court usually has deferred to the political branches’ judgments about military policy, except when politically weak Presidents like Andrew Johnson and Harry Truman overreacted to relatively minor conflicts by taking actions that seemed unduly harsh and invasive of basic constitutional rights. This aggressive judicial review has never lasted long, however. When the next emergency has hit, the Court has reverted to its deferential posture. There is no reason to think that the current Justices are so uniquely brave that they will escape this fate.

Keywords: Supreme Court, Bush, President, 9/11, Hamdi, Rasum, Hamdan, Boumediene, Wartime, Constitution, Liberties, Rights, Military, Judicial, Justices