Houston Criminal Attorney John Floyd Discusses Scalias Blistering Dissent Accusing Justices of Aiding Terrorist


The Supreme Court on June 12, 2008 issued a decision that marked the first time in the nation’s history that the constitutional right to the writ of habeas corpus was conferred on enemy aliens detained abroad by American military forces engaged in an ongoing war. See: Boumediene v. Bush, 553 U.S. ____ (2008) [Slip Opinion No. 06-1195 & 06-1196].

This column dealt rather extensively with the legal ramifications and constitutional underpinnings on this decision (June 24, 2008). The Boumediene decision has drawn a great deal of legal scrutiny and political criticism since its release. One of the decision’s harshest critics, however, was Justice Scalia whose 25-page dissent begs attention.


Pointing out that the Boumediene decision had no basis in constitutional law, Justice Scalia accused the court’s majority of issuing an opinion that will make the nation’s “war on terror” harder and “will almost certainly cause more Americans to be killed.” It is probably the first time that a dissenting U.S. Supreme Court justice has ever accused other justices of doing work that will aid and abet terrorism. Justice Scalia certainly has a right to his point of view, and he prefaced that point of view with the following compelling information:


“America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi and 17 on the USS Cole in Yemen….On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D.C., and 40 in Pennsylvania. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq…”

However, while these ruthless acts of terrorism are sufficient to give any American reason to pause – and perhaps even sufficient to question the very sanctity of our constitutional system of liberty and justice – they certainly do not justify an Associate Justice of the nation’s highest court accusing fellow justices of engaging in “ultra vires” decision-making that will put Americans in harm’s way. If Justice Scalia wants to engage in this sort of political posturing, he should do so in some conservative public speaking forum where he will receive a substantial stipend by those who share his political views.


The fact of the matter is that Justice Scalia’s personal opinions and political views have no place in a “dissenting opinion” by the United States Supreme Court. Justice Scalia himself pointed out that “I shall devote most of what will be a lengthy opinion to the legal errors contained in the opinion of the Court. Contrary to my usual practice, however, I think it appropriate to begin with a description of the disastrous consequences of what the Court has done today.”


Justice Scalia would have served both the dignity and integrity of the judicial process had he stuck to his “usual practice” of simply analyzing the law. Powerful persons blessed with extraordinary intelligence too often assume a license of intellectual arrogance. It comes natural to them to not only criticize the views of others but to viciously attack those views with intellectual venom.


A fair reading of the Boumediene decision does not lend credence to Justice Scalia’s narrow view that it will have “disastrous consequences” for America. It is one thing for Justice Scalia to opine that “the writ of habeas corpus does not, and never has, run in favor of aliens abroad” but quite another for him to paint an opposing view that the writ does run with a political brush of supporting terrorism. He should have graciously and professionally accepted that his constitutional point of view did not prevail at the end of the day after all the briefs were read, all the oral arguments heard, and all the legal and historical research completed. His was a losing opinion.


In support of his dire prediction about the “disastrous consequences” the decision will have, Justice Scalia said:

“In the long term, then, the Court’s decision today accomplishes little, except perhaps to reduce the well-being of enemy combatants that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. Some have been captured or killed. But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Still another murdered an Afghan judge. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq.


“These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Accordingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified…” [Internal citations omitted]


These horrific events lead Scalia, and others, to believe that the harsh realities of the “war on terror” justify an effective suspension of the writ of habeas corpus and a constitutional curtailment of fundamental civil liberties. The majority of the Supreme Court disagreed, saying:


“Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.”


The Supreme Court in Boumediene did not put the Nation at risk as Justice Scalia so erroneously would have Americans believe. The court, if anything, saved us from a prevailing governmental mindset that is quite prepared to impose a “1984” Orwellian-type police state on America. Not one single human life will be lost as a result of the Boumediene decision, but the constitutional right to the writ of habeas corpus would have been dealt a mortal blow had the Scalia-led dissenting opinions prevailed.