A Quick Way Forward After Boumediene

[thedrifter]

June 16, 2008, 6:00 a.m. <br />
<br />
A Quick Way Forward After Boumediene <br />
Either Congress reasserts itself, or terror-friendly bedlam ensues. <br />
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By Andrew C. McCarthy <br />
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It is difficult to single out the...

[thedrifter]

June 17, 2008
'It Will Almost Certainly Cause More Americans to Be Killed'
By Joel J. Sprayregen
The Supreme Court's 5-4 ruling last week means that terrorism detainees captured overseas have the same rights as U.S. citizens facing shoplifting trials at home. This unprecedented expansion of habeas was not a victory, as liberal media smirked, over the President. It was a judicial nullification of procedures crafting by both elected branches of Government of procedures carefully tailored to meet the terrorist threat.

The smallest of majorities is disregarding judicial history and pretending we live in a world where captured deadly enemies can be granted an advantage, without it affecting the likelihood of victory. I can't say it better than Justice Scalia:
“America is at war with radical Islamists. The enemy began by killing Americans 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. 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 and 10 in Pennsylvania… It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane, to know the threat is serious… Last week, 13 of our countrymen in arms were killed.”


Scalia, the smartest justice, alone foresaw that the Special Counsel Law would lead to the embarrassment of the Clinton impeachment proceedings. In his dissent last Friday, he addressed a far more serious issue:

Congress Establishes Procedures; the Court Defines the Military’s Mission

In its 2004 Hamdi decision, the Court invited Congress to establish procedures for detainees. Laws, including the 2005 Detainee Treatment Act (DTA), provide hearings on legality of detention before a Combatant Status Review Tribunal (CSRT), followed by review in the U.S. Court of Appeals for the District of Columbia. A bi-partisan Congress (by 65 to 34) mandated that the 270 Guantanamo detainees are not free to avoid these procedures by filing habeas petitions in whatever federal district court they choose. Centralizing review of life-and-death cases in one Appeals Court -- rather than letting leftist lawyers seek out friendly habeas judges in 50 states before a CSRT could review the evidence -- was the core of the law.

The Court invalidated the law because it found

"…no credible arguments that the military mission would be compromised if habeas courts had jurisdiction to hear detainees' claims."

It is difficult to fault Scalia's riposte:

"What competence does the Court have to second-guess the judgment of Congress and President on such a point?"

Scalia detailed how prisoners released from Guantanamo -- because they were not considered combatants -- had returned to murder Americans and our allies. Scalia is foreseeably correct in concluding that the decision "will almost certainly cause more Americans to be killed."

The Court is basing its decision -- disregarding two centuries of decisions holding that habeas is unavailable to aliens captured abroad -- on the fact that Gitmo is "functionally" under U.S. control. But so are U.S. bases in Afghanistan and Iraq.

Terrorists captured there are now invited immediately to compel our military to reveal its basis for detentions; this is the meaning of habeas. It gets worse. Justice Kennedy explained in invalidating the DTA -- which provides wider access to Government evidence than the Geneva Convention – that

"the detainee’s ability to rebut the Government's evidence is limited by the circumstances of his confinement and his lack of counsel at this stage."

If you do not comprehend that the ACLU and its fellow revelers are preparing petitions in blank to seek -- on behalf of every terrorist captured overseas -- to compel the Government immediately to disclose its evidence, then you understand nothing.

Chief Justice Roberts pointed out in his dissent what the Court is opening the door to:

"free access to classified information ignores the risk the prisoner may convey what he learns to parties hostile to this country, with deadly consequences for those who helped apprehend the detainee."

Roberts noted that our troops are not equipped to handle subpoenas on the battlefield. Information given to lawyers in the first World Trade Towers trial on a restricted basis quickly appeared on al-Jazeera.

The alleged shoplifter at a suburban mall is entitled to see the prosecution's file because she needs it to defend herself. The terrorist wants his file so he can arrange to slit the throats of intelligence operatives and informants.

Our country is doing better against terrorists than against shoplifters: Commentators of varied persuasions are observing that the Islamists have been deterred form launching a second terror strike against our home front.

Jackson’s Warning: Don’t Convert the Bill of Rights into a Suicide Pact

The late Justice Robert H. Jackson -- who grew up in Frewsburg and lawyered in Jamestown -- exemplified the patriotic canniness found in rural New York since the days of Fort Ticonderoga. His worldview was shaped by experience as Chief War Crimes Prosecutor at Nuremburg. In a 1950 opinion -- tossed into the dustbin of history last week -- Jackson denied habeas to a Nazi prisoner because there had been

"no instance where a court has issued habeas corpus to an alien enemy who...has never been within its territorial jurisdiction."


Ponder Jackson's admonition in a free speech case:

"If the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the Bill of Rights into a suicide pact."

Ellie

[thedrifter]

Justice Kennedy: American Idle

By Ann Coulter
FrontPageMagazine.com | 6/19/2008

After reading Justice Anthony Kennedy's recent majority opinion in Boumediene v. Bush, I feel like I need to install a 1984-style Big Brother camera in my home so Kennedy can keep an eye on everything I do.

Until last week, the law had been that there were some places in the world where American courts had no jurisdiction. For example, U.S. courts had no jurisdiction over non-citizens who have never set foot in the United States.

But now, even aliens get special constitutional privileges merely for being caught on a battlefield trying to kill Americans. I think I prefer Canada's system of giving preference to non-citizens who have skills and assets.

If Justice Kennedy can review the procedures for detaining enemy combatants trying to kill Americans in the middle of a war, no place is safe. It's only a matter of time before the Supreme Court steps in to overrule Randy, Paula and Simon.
In the court's earlier attempts to stick its nose into such military operations as the detainment of enemy combatants at Guantanamo, the court dangled the possibility that it would eventually let go.

In its 2006 ruling in Hamdan v. Rumsfeld, the court disallowed the Bush administration's combatant status review tribunals, but wrote: "Nothing prevents the president from returning to Congress to seek the authority (for trial by military commission) he believes necessary."

So Bush returned to Congress and sought authority for the military commissions he deemed necessary – just as the court had suggested – and Congress passed the Military Commissions Act. But as Justice Antonin Scalia wrote in dissent in the Boumediene case last week: It turns out the justices "were just kidding." This was the legal equivalent of the Supreme Court playing "got your nose!" with the commander in chief.

The majority opinion by Justice Kennedy in Boumediene held that it would be very troubling from the standpoint of "separation of powers" for there to be someplace in the world in which the political branches could operate without oversight from Justice Kennedy, one of the four powers of our government (the other three being the executive, legislative and judicial branches).

So now even procedures written by the legislative branch and signed into law by the executive branch have failed Kennedy's test. He says the law violates "separation of powers," which is true only if "separation of powers" means Justice Kennedy always gets final say.

Of course, before there is a "separation of powers" issue, there must be "power" to separate. As Justice Scalia points out, there is no general principle of separation of powers. There are a number of particular constitutional provisions that when added up are referred to, for short, as "separation of powers." But the general comes from the particular, not the other way around.

And the judiciary simply has no power over enemy combatants in wartime. Such power is committed to the executive as part of the commander in chief's power, and thus implicitly denied to the judiciary, just as is the power to declare war is unilaterally committed to Congress. As one law professor said to me, this is what happens when the swing justice is the dumb justice.

Kennedy's ruling thus effectively overturned the congressional declaration of war – the use of force resolution voted for by Hillary Clinton, John Kerry, 75 other senators as well as 296 congressmen. If there's no war, then there are no enemy combatants. This is the diabolical arrogance of Kennedy's opinion.

We've been through this before: Should the military run the war or should the courts run the war?

I think the evidence is in.

The patriotic party says we are at war, and the Guantanamo detainees are enemy combatants. Approximately 10,000 prisoners were taken on the battlefield in Afghanistan. Of those, only about 800 ended up in Guantanamo, where their cases have been reviewed by military tribunals and hundreds have been released.

The detainees are not held because they are guilty; they're held to prevent them from returning to the battlefield against the U.S. Since being released, at least 30 Guantanamo detainees have returned to the battlefield, despite their promise to try not to kill any more Americans. I guess you can't trust anybody these days.

The treason party says the detainees are mostly charity workers who happened to be distributing cheese to the poor in Afghanistan when the war broke out, and it was their bad luck to be caught near the fighting.

They consider it self-evident that enemy combatants should have access to the same U.S. courts that recently acquitted R. Kelly of statutory rape despite the existence of a videotape. Good plan, liberals.

The New York Times article on the decision in Boumediene notes that some people "have asserted that those held at Guantanamo have fewer rights than people accused of crimes under American civilian and military law."

In the universal language of children: Duh.

The logical result of Boumediene is for the U.S. military to exert itself a little less trying to take enemy combatants alive. The military also might consider not sending the little darlings to the Guantanamo Spa and Resort.

Instead of playing soccer, volleyball, cards, and checkers in Guantanamo, before returning to their cells with arrows pointed toward Mecca for their daily prayers, which are announced five times a day over a camp loudspeaker, the enemy combatants can rot in Egyptian prisons.

That may be the only place left that is safe from Justice Kennedy.

Ellie

[thedrifter]

OPINION


We'll Rue Having Judges on the Battlefield
By ANDREW MCBRIDE
June 21, 2008; Page A7

The Supreme Court's decision in Boumediene v. Bush is being hailed in many quarters as a great victory for civil rights and the rule of law. It is not. In fact, it is a watershed in judicial hubris, and in the continuing trend in our society to convert every form of decision making into a lawsuit.

For the first time in our history, the Supreme Court has rejected the considered judgment of both the Congress and the president on an issue of national security. The writ of habeas corpus, a bulwark of domestic liberty, has been extended to foreign nationals whose only connection to the U.S. is their capture by our military.

Justice Kennedy's majority opinion confuses the civilian criminal justice system and the waging of war. The Constitution as interpreted by the Supreme Court places many roadblocks in the path of a conviction for a crime, and for the loss of liberty, or even life, that may follow. The guarantee of counsel, the right to subpoena witnesses and confront adverse witnesses in open court, and the suppression of evidence gathered in violation of law, all make sense in the context of domestic law enforcement. To protect liberty, we are willing to sacrifice some efficiency in our criminal justice system. Our motto remains: Let 100 guilty men go free before one innocent man is convicted.

The situation is entirely different when the nation faces an external threat. In fighting an enemy, there is no reason for the judicial branch to "check" the political branches. The idea of our judiciary protecting the "rights" of the Nazis or the Viet Cong from executive overreaching is every bit as absurd as it sounds. But had Boumediene been decided in 1940, more than 400,000 Axis troops held in more than 500 military facilities in this country during World War II would have had a right to challenge their detention in federal court.

The judiciary is not competent to make judgments about who is or is not an enemy combatant or, more generally, a threat to the U.S. The imposition of the civilian criminal justice model on decisions regarding potentially hostile aliens raises a host of questions which the Court does not even attempt to answer in Boumediene.

Must military personnel take notes in the field regarding the location, dress, and comportment of captives for later use in the "trials" mandated by the Supreme Court? Must a chain of custody be preserved on a firearm or bomb seized from an enemy combatant? Can a detainee file a writ for habeas corpus immediately upon arriving at a U.S. military base like Guantanamo Bay?

The Boumediene majority usurps decisions that should be made by the military, but answers none of these questions. In fact, judgments regarding the detention or trial of enemies require training, experience, access to and understanding of intelligence. They cannot be reduced to a particular standard of proof in a courtroom setting. The military has made mistakes at Guantanamo, among them releasing some detainees who have returned to attack American troops in Afghanistan or Iraq. God help us if the judiciary makes such a mistake and releases the next Mohammad Atta into our midst.

Mr. McBride is a former federal prosecutor and worked in the Justice Department in the administration of President George H.W. Bush, where he was responsible for national security matters.

Ellie