The United States Supreme Court Versus America: Awarding "The Privilege of Habeas Corpus To Terrorists"

Hugh Hewitt
Thursday, June 12, 2008

Yesterday's 5-4 decision awarding "unlawful combatants" at Gitmo --terrorists-- the "privilege of the writ of habeas corpus" has left millions of Americans stunned. What in the world is the majority of the Supreme Court thinking? Justice Scalia, writing in dissent, was blunt:

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. See National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, pp. 60–61, 70, 190 (2004). 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. See id., at 552, n. 9. 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 that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13of our countrymen in arms were killed.

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

These are harsh words, unusually so even for ordinary debate, but amazingly so among the nine. Justice Scalia is quite obviously as frustrated with his aging colleagues as are the vast majority of Americans. There’s a war going on. These terrorists and their still-at-large allies are trying to kill us. The president and the Congress, including many Democrats, took the blueprint the Court delivered the last time it addressed the matter and passed a statute specifically tailored to the demands the Court’s five justices laid out. Now that Supreme Court-mandated approach has been struck down, and the “great writ” is open to the worst killers who have ever set their sights on the homeland.

What this means, of course, is more litigation, more delays, and more confusion. 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. It is as though the five justices and their clerks are wholly ignorant of the rising stack of books and flood of articles detailing the nature of the enemy and their creed of death.

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. Andrew McCarthy’s brilliant new book, Willful Blindness, A Memoir of the Jihad, recounts how unprepared the American legal system was for the assault by the fanatics when it first crashed into the World trade center in 1993 and how even after 9/11 it could not adjust to cope with the war in which we are engulfed. Obviously the highest rank of our legal elite have not yet come to grip with the nature of the enemy.

We have to pray that Justice Scalia is wrong though common sense tells us he is right. The majority’s indulgence of the killers’ demand to be treated as ordinary Americans or as aliens journeying through our land is as astonishing as it is dangerous. By asserting its preeminence over the combination of the president and the Congress, Justice Kennedy and his colleagues have certainly proven they are not at the top of the least dangerous branch. Far from it, in fact. The dangers the majority subject us to are all too apparent.