June 18, 2008
Supremely foolish
It's been a week since the U.S. Supreme Court issued what may be the single most dangerous, unjustified -- and intellectually dishonest -- decision in the history of the American judiciary, when five justices ruled that unlawful combatants, captured on the battlefield, are entitled not only to more rights than POWs receive under the Geneva Conventions, not only more rights than members of the U.S. military, not only more rights than illegal aliens in the United States, but to the same rights as American citizens.
Former Justice Department official John Yoo has this to say in today's Wall Street Journal.
Last week's Supreme Court decision in Boumediene v. Bush has been painted as a stinging rebuke of the administration's antiterrorism policies. From the celebrations on most U.S. editorial pages, one might think that the court had stopped a dictator from trampling civil liberties. Boumediene did anything but. The 5-4 ruling is judicial imperialism of the highest order.
Boumediene should finally put to rest the popular myth that right-wing conservatives dominate the Supreme Court. Academics used to complain about the Rehnquist Court's "activism" for striking down minor federal laws on issues such as whether states are immune from damage lawsuits, or if Congress could ban handguns in school. Justice Anthony Kennedy -- joined by the liberal bloc of Justices John Paul Stevens, David Souter, Ruth Ginsburg and Stephen Breyer -- saves his claims of judicial supremacy for the truly momentous: striking down a wartime statute, agreed upon by the president and large majorities of Congress, while hostilities are ongoing, no less.
First out the window went precedent. Under the writ of habeas corpus, Americans (and aliens on our territory) can challenge the legality of their detentions before a federal judge. Until Boumediene, the Supreme Court had never allowed an alien who was captured fighting against the U.S. to use our courts to challenge his detention.
In World War II, no civilian court reviewed the thousands of German prisoners housed in the U.S. Federal judges never heard cases from the Confederate prisoners of war held during the Civil War. In a trilogy of cases decided at the end of World War II, the Supreme Court agreed that the writ did not benefit enemy aliens held outside the U.S. In the months after the 9/11 attacks, we in the Justice Department relied on the Supreme Court's word when we evaluated Guantanamo Bay as a place to hold al Qaeda terrorists.
The Boumediene five also ignored the Constitution's structure, which grants all war decisions to the president and Congress. In 2004 and 2006, the Court tried to extend its reach to al Qaeda terrorists held at Guantanamo Bay. It was overruled twice by Congress, which has the power to define the jurisdiction of the federal courts. Congress established its own procedures for the appeal of detentions.
Incredibly, these five Justices have now defied the considered judgment of the president and Congress for a third time, all to grant captured al Qaeda terrorists the exact same rights as American citizens to a day in civilian court.
Judicial modesty, respect for the executive and legislative branches, and pure common sense weren't concerns here either. The Court refused to wait and see how Congress's 2006 procedures for the review of enemy combatant cases work. Congress gave Guantanamo Bay prisoners more rights than any prisoners of war, in any war, ever. The justices violated the classic rule of self-restraint by deciding an issue not yet before them.
Judicial micromanagement will now intrude into the conduct of war. Federal courts will jury-rig a process whose every rule second-guesses our soldiers and intelligence agents in the field. A judge's view on how much "proof" is needed to find that a "suspect" is a terrorist will become the standard applied on the battlefield. Soldiers will have to gather "evidence," which will have to be safeguarded until a court hearing, take statements from "witnesses," and probably provide some kind of Miranda-style warning upon capture. No doubt lawyers will swarm to provide representation for new prisoners.
So our fighting men and women now must add C.S.I. duties to that of capturing or killing the enemy. Nor will this be the end of it. Under Boumediene's claim of judicial supremacy, it is only a hop, skip and a jump from judges second-guessing whether someone is an enemy to second-guessing whether a soldier should have aimed and fired at him.
[...]
Just as there is always the chance of a mistaken detention, there is also the probability that we will release the wrong man. As Justice Antonin Scalia's dissenting opinion notes, at least 30 detainees released from Guantanamo Bay -- with the military, not the courts, making the call -- have returned to Afghanistan and Iraq battlefields.
The Michael Ramirez cartoon at the top of this post is not mere hyperbole; former Gitmo inmates have indeed returned to the fight and killed Americans. Many, many more will do so, thanks to this decision.
It's hard to overstate just how damaging this opinion is, not just to our nation, but the system of checks and balances put in place by the Framers. The Imperial Judiciary is supposed to be anything but, the weakest of the three branches of government, its members unelected and answerable to no one.
Rather, it is the Congress and the Executive branches which are tasked with legislating and fighting wars, their political fates held in the hands of the People.
The biggest loser -- apart from the Americans who will be needlessly slaughtered as a result of this gift to the jihadis -- is the Supreme Court itself, for nothing anyone can say or do can do more damage to its reputation and standing with the American People than what the Justices have done to themselves.
Posted by Mike Lief at June 18, 2008 07:19 AM
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Comments
Not being a legal scholar by any stretch of the imagination, I am glad to see that my thoughts are confirmed by someone with legal training.
But, I am sad to see that, too.
Posted by: sonarman at June 19, 2008 08:49 PM
After this ruling, it will be in a soldier's best interest to kill enemy combatants rather than detain them. So much for the ability to gather intelligence.
Posted by: glrex at June 24, 2008 04:40 PM