Overturning decades of legal precedent, a bitterly divided United States Supreme Court today gave aid and comfort to the enemy by declaring unconstitutional a 2006 law stripping “Guantanamo prisoners of the right to file so-called habeas corpus petitions,” reported Bloomberg news today. Justices John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg and David Souter supported Anthony Kennedy’s opinion for the majority. Kennedy wrote in part, “The detainees in these cases are entitled to a prompt habeas corpus hearing,” elevating enemy combatants to the legal status of American citizens. Yet to be determined is which took the biggest beating today, the war on terror or the rule of law.
Acknowledging that Guantanamo is “technically not part of the United States,” Justice Kennedy nevertheless argued that constitutional habeas corpus “has full effect” there, an arbitrary extension of American legal power that will no doubt be used against U.S. forces wherever they are in “complete and total control,” Kennedy’s vacuous reason for extending constitutional guarantees out of country. The Green Zone in downtown Baghdad was just wrapped in the Constitution of the United States of America.
Never in history has any country extended constitutional rights to apprehended enemy fighters. The detainees in question, moreover, were captured out of uniform, grounds for summary execution in better times. Dressed as civilians and representing no country, such guerrillas have no rights. The much hyped Geneva Conventions apply to uniformed soldiers battling under the flag of their country. The Supreme Court also mistakenly ruled the Geneva agreements apply to Gitmo inmates. Today’s ruling continues that assault on law and order, manufacturing rights for vile killers which no legislative body on earth has been inclined to do. Once again, 5 justices create law that overturns the will of the Congress, the President, and the people.
Speaking two years ago when the legal debate over the rights of Gitmo prisoners was heating up, Justice Antonin Scalia said, “War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts,” Newsweek quoted Scalia as saying. “Give me a break.” Today Scalia was equally troubled, saying “The nation will live to regret what the court has done.”
Trying foreign fighters in the middle of a war is tricky business. If the defendants have the right to face their accusers and cross examine them, all manner of security breeches may occur. Undercover agents may be required to testify, or clandestine operatives might be outed in open court. Cross examination may probe into the sensitive areas of force deployment and tactics, and the names of key allies could be revealed. To avoid such catastrophes, American prosecutors may be forced to present weakened evidence, or could choose to forsake prosecution altogether. Perhaps that’s what the Black Robed 5 had in mind. Can’t we all just get along?
President Bush has voiced his vehement disagreement with the Court’s ruling, suggesting that new legislation may be forthcoming to blunt the damage done to American security. Let’s hope so. In the meantime, average Americans will do well to remember that the next President is likely to appoint as many as three Supreme Court Justices. John Paul Stevens is 88, while Kennedy, Breyer, Ginsburg, Souter, and Scalia were born in the 1930s. John McCain has already declared he will appoint justices in the mold of John Roberts and Samuel Alito, two of the four Justices who got it right today. Three more like Roberts/Alito/Scalia/Thomas will produce a Court dedicated to the rule of law, legislation by the Congress, and the proposition that the Constitution of the United States applies to American citizens and legal residents, not to terrorists.
Earlier this year Barack Obama, during an interview on CNN, cited Justices Stephen Breyer, Ruth Bader Ginsburg, and David Souter as examples of the kinds of justices he would appoint to the high court.
Come November you will elect a President, and by proxy select a few Justices of the Supreme Court. Your choice will tip the balance of power in the Supreme Court for 30 years. Choose wisely.
Click on “Read the rest of this entry” for other columns on today’s Supreme Court Ruling.
From the website of Laura Ingraham: “In a major defeat to America and the War on Terror, the Supreme Court this morning ruled that enemies captured on the battlefield have habeas corpus rights under the U.S. Constitution. It is almost impossible to explain just how damaging this decision is, though we get an idea when Justice Scalia notes in his dissent that the ruling ‘will almost certainly cause more Americans to be killed.’ That outcome, he says, might be tolerable if the Court were upholding longstanding legal precedent. Instead it’s a stark reversal of precedent that opens this country up to new security threats.
“For example: There currently are no rules for trying enemy combatants in American courtrooms — that will be left up to the courts themselves. (The Court did insist on defendants having access to witnesses; does that mean U.S. soldiers serving in the field?) Assuming defendants receive legal protections on par with U.S. citizens, terrorists will be able to easily manipulate our court system for access to classified government intel. Scalia notes that when the terrorists behind the first World Trade Center attack were tried, federal prosecutors produced the names of 200 unindicted co-conspirators, and ‘that information was in the hands of Osama bin Laden within two weeks.’
“Insanely, the military tribunals that were today declared unconstitutional were set up by Congress and the White House at the direction of an earlier SCOTUS ruling. ‘Turns out they were just kidding,’ Scalia notes wryly.”
Posted by Jerry Pomeroy in Campaign 2008, Judicial Activism, Rule of Law, War on Terror