Boumediene

Look, 5 years ago there were 660 guests at Gitmo. Today there are less than 270. Of the 390 released – that’s released by the US military – 30 have either suicide bombed, been recaptured or have died while attacking (mostly) non-US citizen civilians. Those are the ones we know about. A rational guess would say there are probably more. It would also say those released who are still living free are the smarter, more dangerous ones.

If “innocent until proven guilty” has any meaning, I hope other Western democracies can live up to the example of the US military. Their record, and overwhelming Congressional and Executive suport for the process they followed, has not been sufficient for our own highest court. It’s like gun-control rhetoric in Toronto.

As I said on June 12th, it was a sad day. My response to a naive comment on that post here. (#3 & 4)

SCOTUS has vastly complicated the prosecution of the war with the Miranda rights for Jihadi Boumediene decision. It has opened the door for every terrorist suspect captured on the battlefield, no matter where subsequently detained by US forces, to demand treatment with the full rights and protections of the Constitution of the United States. Following the SCOTUS majority’s logic, this would include Osama bin Laden, should the United States be foolish enough to detain him itself.

To reach this conclusion, SCOTUS had to ignore multiple precedents and the structure of the Constitution itself. Why would it do so?

Eric H. Holder Jr., currently co-chair of Barack Obama’s running mate selection committee and Deputy Attorney General during the Clinton administration (from which position he pushed for the pardon of Marc Rich) has an idea. He says the United States owes the rest of the world an apology.

Insisting it was disgraceful that the Supreme Court “had to order the president to treat detainees in accord with the Geneva Convention”* in the Boumediene decision, Holder went on to say:

“Our needlessly abusive and unlawful practices in the ‘War on Terror’ have diminished our standing in the world community and made us less, rather than more, safe,” Holder told a packed room at the ACS 2008 Convention on Friday evening. “For the sake of our safety and security, and because it is the right thing to do, the next president must move immediately to reclaim America’s standing in the world as a nation that cherishes and protects individual freedom and basic human rights.”

I have no doubt that 5 Supreme Court Justices agree. I am not alone.

Bloomberg: Guantanamo Ruling May Roil Obama, McCain With No Alternatives

…the Supreme Court said the prisoners must be treated as if they are on sovereign U.S. territory even though the prison is on Cuban soil.

The Weekly Standard: The Gitmo Nightmare

It’s hard to summarize a decision as long and complicated as the Supreme Court’s 5-4 ruling last week in Boumediene v. Bush. But we can try. Unprecedented. Reckless. Harmful. Breathtakingly condescending.

…As it happens, some of the most effective arguments against Boumediene come from the decision itself. For example, Justice Kennedy wrote that in cases involving terrorist detention, “proper deference must be accorded to the political branches.” Then he overrode them.

…In his opinion, Kennedy conceded that “before today the Court has never held that non-citizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution.” Inventing rights seems to be what some of today’s Supreme Court justices do best. In 1950 the Court ruled in Johnson v. Eisentrager that foreign nationals held in a military prison on foreign soil (in that case, Germany) had no habeas rights. But, without overruling Eisentrager, Kennedy said the Guantánamo detainees are different from the German prisoners 58 years ago.

Why? Kennedy wrote that Eisentrager had a unique set of “practical considerations,” and the United States did not have “de facto” sovereignty over Germany as it does over Guantánamo Bay. That territory, “while technically not part of the United States, is under the complete and total control of our Government.” But these slippery distinctions only raise more questions. Doesn’t the United States government exercise “complete and total control” over its military and intelligence facilities worldwide? If so, what’s to stop foreign combatants held in those locations from asserting their habeas rights?

USA Today: Opposing view: An inexplicable power grab

…The court said the doctrine that it was upholding is enshrined in the Constitution, even though it candidly acknowledged that it could not cite a single prior case in which an American or English court had exercised such power in a case involving aliens held overseas.

The court’s unprecedented power grab is inexplicable given the absence of substantial evidence that innocent people are being detained. Every Guantanamo Bay detainee has been afforded a hearing in front of a Combatant Status Review Tribunal; those still being held were all determined to be enemy combatants. The basic fairness of the hearings is readily apparent. Many resulted in detainees being released.

The Wall Street Journal: President Kennedy

Supreme Court Justice Anthony Kennedy isn’t known for his judicial modesty. But for sheer willfulness, yesterday’s 5-4 majority opinion in Boumediene v. Bush may earn him a historic place among the likes of Harry Blackmun. In a stroke, he and four other unelected Justices have declared their war-making supremacy over both Congress and the White House.

…Justice Kennedy’s opinion is remarkable in its sweeping disregard for the decisions of both political branches. In a pair of 2006 laws – the Detainee Treatment Act and the Military Commissions Act – Congress and the President had worked out painstaking and good-faith rules for handling enemy combatants during wartime. These rules came in response to previous Supreme Court decisions demanding such procedural care, and they are the most extensive ever granted to prisoners of war.

…By the logic of Boumediene, members of al Qaeda will now be able to challenge their status in court in a way that uniformed military officers of a legitimate army cannot. And Justice Scalia points out that this was not a right afforded even to the 400,000 prisoners of war detained on American soil during World War II. It is difficult to understand why any terrorist held anywhere in the world – whether at Camp Cropper in Iraq or Bagram Air Base in Afghanistan – won’t now have the same right to have their appeals heard in an American court.

Townhall.com: The United States Supreme Court Versus America: Awarding “The Privilege of Habeas Corpus To Terrorists”

…Only one thing is certain: Our terrorist enemies still at large must be amazed, amused and encouraged by the continued insistence by legal elites that they be treated like petty American criminals rather than fanatical killers eager for martyrdom.

…What is more alarming than the prospect of ignorance on the part of the majority is their collective seduction by hard left elites, particularly those in the Academy. Supreme Court justices don’t get out much. When they do it is typically to the nation’s law schools and to judicial and ABA conferences, where they are no doubt surrounded by thousands of elites who have as much experience with the war as the justices, but are perhaps even less well read on the nature of the jihadists’ ideology and tactics.

The Weekly Standard: Due Process for Jihadists?

The solicitor general had a very good case. Let’s leave aside that in Johnson v. Eisentrager (1950) the Supreme Court flatly held that the Constitution does not vest foreign enemies with the right to habeas corpus–i.e., to challenge their military detention before the civilian courts. Let’s instead compare what Congress has wrought (with the 2005 Detainee Treatment Act and the 2006 Military Commissions Act) and “the base line” of 1789, when the Constitution enshrined habeas rights for Americans.

Clement recounted that in the late 18th century, alien combatants faced three insuperable hurdles in front of the courthouse door: (a) the jurisdiction of the federal courts did not extend outside U.S. territory; (b) the judicial writ was simply unavailable to belligerents because taking prisoners of war was deemed a political act of the sovereign, not a legal question for the courts; and (c) judges were required by separation-of-powers principles to accept the executive branch’s determination of combatant status.

Now, by contrast, combatants are given systematic judicial reviews in the civilian courts despite being held in a location, Guantánamo Bay, that the political branches have reaffirmed is not part of sovereign U.S. territory.

Wall Street Journal: The The Supreme Court Goes to War

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.

…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.

Read The Whole Things

*The Geneva Convention explicitly excludes combatants who pose as civilians (i.e., without uniforms) or who target civilians. They are considered spies and terrorists respectively. They are not entitled to protection as prisoners of war. And even POW’s have never been granted habeas rights.

Obama and McCain are right. Close Guantanamo.

Blogging has been light lately for two reasons. First, I became a grandfather on Friday, June 6th. Second, as a result of storm damage in the Lansing area I’ve been without internet access since Saturday. But, onto the topic of this post’s title.

Today’s SCOTUS decision to extend Constitutional protections to enemy combatants – foreign nationals whose boots have never contacted US soil – reverses a 1950 precedent that nonresident alien enemy combatants have no right to habeas corpus. Guantanamo is now useless as a detention center for terrorist suspects. Unfortunately, the Bush administration was foolish enough to believe the precedent would protect the United States from having to reveal secret intelligence at trail before Civil courts.

Here is a small excerpt from Justice Scalia’s dissenting opinion:

…The President relied on our settled precedent in Johnson v. Eisentrager, 339 U. S. 763 (1950) , when he established the prison at Guantanamo Bay for enemy aliens. Citing that case, the President’s Office of Legal Counsel advised him “that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at [Guantanamo Bay].” Memorandum from Patrick F. Philbin and John C. Yoo, Deputy Assistant Attorneys General, Office of Legal Counsel, to William J. Haynes II, General Counsel, Dept. of Defense (Dec. 28, 2001). Had the law been otherwise, the military surely would not have transported prisoners there, but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves.

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. See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report). Some have been captured or killed. See ibid.; see also Mintz, Released Detainees Rejoining the Fight, Washington Post, Oct. 22, 2004, pp. A1, A12. 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. See Khan & Lancaster, Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 15, 2004, p. A18. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Mintz, supra. Still another murdered an Afghan judge. See Minority Report 13. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. See White, Ex-Guantanamo Detainee Joined Iraq Suicide Attack, Washington Post, May 8, 2008, p. A18.

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. Astoundingly, 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. As The Chief Justice’s dissent makes clear, we have no idea what those procedural and evidentiary rules are, but they will be determined by civil courts and (in the Court’s contemplation at least) will be more detainee-friendly than those now applied, since otherwise there would no reason to hold the congressionally prescribed procedures unconstitutional. If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase.

But even when the military has evidence that it can bring forward, it is often foolhardy to release that evidence to the attorneys representing our enemies. And one escalation of procedures that the Court is clear about is affording the detainees increased access to witnesses (perhaps troops serving in Afghanistan?) and to classified information. See ante, at 54–55. During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. See Minority Report 14–15. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities. See id., at 15.

And today it is not just the military that the Court elbows aside. A mere two Terms ago in Hamdan v. Rumsfeld, 548 U. S. 557 (2006) , when the Court held (quite amazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo petitioners’ claims, four Members of today’s five-Justice majority joined an opinion saying the following:

“Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary.

“Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means.” Id., at 636 (Breyer, J., concurring).1

Turns out they were just kidding. For in response, Congress, at the President’s request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive—both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting. As the Solicitor General argued, “the Military Commissions Act and the Detainee Treatment Act … represent an effort by the political branches to strike an appropriate balance between the need to preserve liberty and the need to accommodate the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States.” Brief for Respondents 10–11 (internal quotation marks omitted).

But it does not matter. The Court today decrees that no good reason to accept the judgment of the other two branches is “apparent.” Ante, at 40. “The Government,” it declares, “presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.” Id., at 39. What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

I recommend reading the whole thing.

This is a sad day. Five SCOTUS Justices, in the name of preserving American justice, have instead demonstrated the insidious weakness of Western Civilization’s leftist guilt-quest for cultural self-esteem.

Sadly, Osama, we may indeed be the weak horse. Our Supreme Court is a pony, at best. And it’s riding us.

Redress of grievances? Not quite.


George Will picks up on a theme The Other Club discussed here. We pointed out that shifting the debate to the question of how to appropriately systematize the violation of the First Amendment is not a victory for free speech.

Will has hopes that when SCOTUS looks at this case it will begin to unravel the fabric of incumbent protection.

A Retreat on Rationing Free Speech?

…Imagine: Judges scouring the political landscape, searching for evidence (people’s past opinions or associations; e-mails and other communications) that would empower them to rule that grass-roots lobbying about an issue is “really” the functional equivalent of electioneering (express advocacy).

Such a process would necessarily be so protracted that no challenged ad could be authorized in time for an election. Besides, Bob Bauer, a Democratic campaign lawyer, rightly warns that the prospect of such inquiries should “make a sensible citizen’s blood run cold.” An uncircumscribed inquiry into “intent” would become “an intrusive process” in which an organization’s internal communications would be subpoenaed and political operatives and consultants would be “put under oath and questioned about what they meant and intended and thought.”

…the reformers’ zeal for regulating speech is undiminished. The Federal Election Commission recently fined some “527” groups (named for the tax code provision under which they organize) $630,000. Their offense? Issue advocacy in 2004 that, “taken as a whole,” could “only be interpreted by a reasonable person as containing the advocacy of the election or defeat” of a federal candidate. Editorial writers at The Post and the New York Times, ever eager to regulate political advocacy not done by newspaper editorial writers, approved, although the Times thought the fines insufficient, and although The Post, calling the current law “murky,” thought the FEC should have enforced the murkiness quicker.

…the Supreme Court … can begin undoing the damage it did at the time it affirmed McCain-Feingold and licensed government to ration political speech.

I hope Will is right, but even while SCOTUS is focused on this tiny portion of the warp and woof, the new Speaker of the House is calling for more restriction on free speech: Tapscott and Fitzgibbons on Nanzi Pelosi.