Social Networking and the Election

I currently read the interview "Party Crashing: How the Facebook generation does Politics." and it made me wonder about how social networking and the internet will play a role in the upcoming election. While the article concludes that weariness of partisan politics is causing young people to look more and more at individuals rather than parties, and this in turn means that peer to peer relationships between candidates and voters remains important, it is the role of social networking that I think can have a profound effect on this election.

Take a look at Barack Obama's facebook fan page, it has over 1 million fans. Granted this may be misleading as many of these fans may be under the voting age, it still shows how the internet can create enthusiasm and momentum for political movements. Ron Paul similarly gained strength early in the primary process through the internet. However this shows the inherent frailty in this method of politics- Voter Turnout. Young people are inherently the least likely to vote in major elections.

Will the advent of social networking create a change in this?

It is hard to tell. In any case, the promise of social networking to help organize and motivate a movement holds promise for grassroots campaigns around the country, and may be helpful in curing the nation's political apathy

Boumediene V. Bush- What are the Boundaries of the Court’s Jurisdiction

The recent Supreme Court decision concerning Enemy Combatants held at the now infamous Guantanamo Bay military prison in Cuba has garnered immense media attention, as traditional partisan politics divide the reaction. Applauded by advocates of civil liberties, and demonized by conservatives arguing for national security, this case marks a sharp shift in court precedent which has previously upheld the authority for such detentions by the executive branch (see the Hamdi, Padilla, and Hamdan cases). The irony of this particular case is how hard it was to read the actual opinions of the court. None of the media resources reporting this case even mentioned the name of the petitioners or the case itself, which for your information is Boumediene v. Bush. I finally found the name of the case through a Wikipedia article on Guantanamo Bay. Back to the heart of the matter, the case functionally makes the Military Commissions Act unconstitutional, insofar as it denies detainees at Guantanamo Bay the writ of habeas corpus, and places the detainees under the jurisdiction of the U.S. District Courts, allowing them to pursue legal recourse in the District Course without going through the standard procedures of the court of appeals. Here I will raise two questions about the decision, one from a Constitutional theory point of view and the other from a logistical point of view. I would like to initially note that I am not arguing in favor of infinite detentions of enemy combatants nor for torture, as I believe that both are counterproductive to American interests. Instead I will attempt to reconcile the protection of Civil Liberties with national security, and Constitutional and logistical concerns with what I view as a vague ruling.

Constitutional Concerns- a Question of Jurisdiction

It is important to note that both the Court of Appeals and District Court dismissed the case of Boumediene v. Bush on jurisdictional grounds, thus the Supreme Court ruling effectively answers a jurisdictional question of whether or not enemy aliens held outside the United States have access to the domestic court system. Judge Kennedy argues that they do, stating “In light of our conclusion that there is no jurisdictional bar to the District Court’s entertaining petitioners’ claims.” In order to do so Kennedy must answer two important jurisdictional questions: first, what right do enemy aliens have in domestic courts, and second, what right do those held in military prisons outside of the US have in domestic civilian courts.

In answer to the first question, Kennedy spends much time speaking about the history of the writ, arguing that historically, even before the writing of the constitution, habeas corpus was used to protect foreign nationals as well as citizens. However, much of the case history that Kennedy brings up is based on foreign nationals detained inside the domestic United States on criminal charges, not those held by the military facing war crimes. It is the unique intersection of these two qualities which presents the problem. Kennedy himself admits that research into whether previous case law answers this jurisdictional question is vague stating “Diligent search by all parties reveals no certain conclusions. In none of the cases cited do we find that a common-law court would or would not have granted, or refused to hear for lack of jurisdiction, a petition for a writ of habeas corpus brought by a prisoner deemed an enemy combatant.” While it makes sense that the writ should apply to foreign nationals who are detained on criminal charges within the United States, the question of whether it applies to foreign nationals in combat areas who are held as enemy combatants is much more ambiguous. Kennedy also admits that British common-law courts have often dismissed such cases on jurisdictional grounds, as “In Schiever and the Spanish Sailors’ case, the courts denied relief to the petitioners…In Du Castro’s Case, the court granted relief, but that case is not analogous to petitioners’ because the prisoner there appears to have been detained in England.” The crucial question now appears to be the question of geographic location and whether or not those held by the military outside of the country on US military bases are granted the writ.

In regards to the geographic question, the case record becomes even more ambiguous with both sides arguing that the lack of judicial precedent proves their point. The question in order to reconcile this with legal precedent deals with sovereignty over the base at Guantanamo Bay. The government holds that because Cuba holds absolute sovereignty, American domestic courts have no jurisdiction. Kennedy does not dispute this fact but instead argues that the military’s control over the base at Guantanamo creates a sense of sovereignty granting detainees access to American courts, using case law examples from petitioners living on base housing out of the country who were able to petition for trial by jury instead of military trials. The flaw in this logic is that these cases dealt with American citizens living overseas, not with the converse of foreign nationals held by the US military. Kennedy then attempts to differentiate the current case from the case of Johnson v. Eisentrager, in which prisoners held in a German prison by Americans during the post war occupation were denied the writ. Kennedy admits that many of the same circumstances appear, both petitioners are non citizens, captured by the military outside the United States, and being held as enemy combatants. Instead of using the precedent of the Eisentrager case, as the government suggests, Kennedy argues that because the current petitioners argued that they aren’t enemy combatants that they are entitled to the writ’s protection. Functionally, Kennedy is arguing that because they pled not guilty in military commissions they are entitled to American domestic courts despite not being held by US domestic security forces.

More importantly I believe, Kennedy sharply shifts from the rhetoric of the Eisentrager case which in the majority opinion argues, “If this [Fifth] Amendment invests enemy aliens in unlawful hostile action against us with immunity from military trial, it puts them in a more protected position than our own soldiers. … We hold that the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.” Kennedy’s response to this is that the current petitioners are not members of a nation currently at war with the United States. There are several flaws in this line of argument. First, Germany at the time of the detentions in the Eisentrager case was not at war with the United States. Second, there hasn’t been a formal declaration of war since WWII. Would Kennedy grant the rights of Vietnamese or Korean detainees being held in military bases in Vietnam or Korea the right to challenge such detentions in domestic courts?

These ambiguities in reference to existing case law and statutes on the subject of detainees make the Kennedy opinion appear to be a prime example of judicial activism, as the Court breaks with existing precedent on case law essentially making its ruling by fiat. Though the circumstances in this case vary from the Eisentrager case, they are not as stark, I believe, to warrant such a shift in current precedent.

Practical Concerns- Court Clog

As the Court dramatically expands its jurisdiction to include any “enemy combatants” held on military bases in foreign countries, this arises several practical concerns that the Court fails to address. Kennedy argues that this decision grants the executive flexibility and ample room to create the necessary intelligence infrastructure and interdiction capabilities to defend against potential terrorist attacks. While this case does not hamper the ability for the armed forces to apprehend and detain individuals in foreign battlefields, for as Kennedy explicitly notes, this case doesn’t deal with the legal authority of such detentions only the jurisdiction of the courts for habeas corpus hearings, the case does raise questions on the domestic level. The Kennedy opinion fails to set up a practical framework for the habeas corpus hearings for the detainees. Will each individual be tried individually, thus creating potentially 270, according to recent reports of the number held there, new cases directly on the District Courts’ docket? Where will the detainees be held while they await their hearings, in Guantanamo or in the U.S.? Does this case apply to all “enemy combatants” or only for the peculiar case of Guantanamo Bay?

The Kennedy decision fails to answer any of these practical considerations, placing focus on the protection of Civil Liberties, disregarding any need to set up a juridical framework. One can easily remember the vague decision in Brown v. Board of Education as well as the Brown 2 decision, whose implementation instructions consisted of “integrate with all deliberate haste.” What followed was the resistance of several southern states, as they refused to enforce the Court’s mandates, as well as the use of the National Guard to forcibly integrate schools in the famed “Little Rock nine” incident. While I am not arguing that the Brown decisions should not have happened, on the contrary, I believe that racial integration and colorblindness are the only ways to solve racism, it is the ambiguities in that decision which led to its failed implementation as years after its decision it failed to achieve its goal of integration.

Furthermore, the Kennedy opinion remains completely vague on the issue of whether military commissions can be used as a substitute to traditional habeas corpus hearings. Kennedy admits “We do not endeavor to offer a comprehensive summary of the requisites for an adequate substitute.” However, as the opinion implicitly implies that adequate substitutes for the writ can be constitutional, as Kennedy writes, “the question becomes whether the statute stripping jurisdiction to issue the writ avoids the Suspension Clause mandate because Congress has provided adequate substitute procedures for habeas corpus,” it becomes clear that the Court must provide a framework for what an acceptable substitute for habeas corpus should be. The opinion fails to point to any case law or statute, and instead only rules that the MCA is an unconstitutional suspension of habeas corpus. In addition to the potentially infinite number of detainees suing for habeas corpus hearings in District Courts, the Courts will also potentially have to hear cases in regard to the constitutional nature of any congressional advocated substitute for the writ, ruling on a case by case basis, rather than using the Boumediene case to establish a precedent on requirements for habeas corpus hearings.

Conclusions and Possible Solutions

While the Court attempted to create a balancing test for national security and civil liberties with the Boumediene decision, various ambiguities and fiat rulings litter the Kennedy opinion. While I believe that the Court is well within Constitutional grounds to require some form of habeas corpus preceding for those detained in the war on terror, I believe that the vast expansion of judicial jurisdiction as created in this case does not follow the existing case law on the subject, and presents numerous practical problems that the Court fails to address. I believe that the Court could have ruled requiring a more practical substitute for federal habeas corpus hearings, while still holding the MCA hearings unconstitutional. The Court could have ruled that military commissions for enemy combatants must adhere to a certain standard, and mandate that the military provide resources to the detainees to meet such standards. Similarly the Court could have ruled against the use of the designation of “enemy combatants” and mandated that all those held be held as Prisoners of War under the Geneva Convention, entitled to all of the rights therein. Or the Court could have modified the Eisentrager decision to provide for better habeas corpus remedies for those held outside of the U.S.

In conclusion, I wish to echo the concerns of Scalia in his dissent. “The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires.” That is, there is no statute or case law justifying the Court’s ruling in the Boumeiene case. Futhermore, Scalia writes “Eisentrager thus held—held beyond any doubt—that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign.” Thus Kennedy’s analysis on de facto sovereignty as the indication of whether detainees have access to federal courts, fundamentally violates existing precedent. This focus on de facto sovereignty functionally infinitely expands the Court’s jurisdiction to any holding facility where the US has some sort of control.

I hope that my arguments are read not as a neo-conservative tirade against granting rights to War on Terror detainees but rather an objective review of the Kennedy opinion. I hope that this review was insightful and would appreciate any comments or feedback.