By Andrew McBride
Saturday, June 21, 2008
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.
3 comments:
Re: “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.”
This is not true. Some of those at Guantanamo were taken, not by our military, but by the CIA and, I believe, the FBI, in countries other than the USA or for that matter Iraq or Afghanistan. These people are being charged with a crime, terrorism.
All the others held, those who were taken in Iraq or Afghanistan, are being charged with another crime, being “unlawful enemy combatants.” In other words they are not ordinary POWs, which is not a crime. And finally all are connected to the USA because they were taken to Guantanamo, which the court has ruled three times, not just in this case, is really the USA as far as our law is concerned – and why not, should it be considered Cuba; should Cuban law apply?
Note the difference between the enemy combatants at Guantanamo and the POWs held in the past. Being a POW is not a crime, so naturally courts would not get involved. Being a terrorist or “unlawful enemy combatant” are both crimes. Both far more serious than being a POW. In fact, for terrorism the penalty can be death, so the Supreme Court has simply ruled that the government has to present some evidence to a court to prove that there really were crimes and not just another government stupidity.
Re: “The idea of our judiciary protecting the "rights" of the Nazis or the Vietcong from executive overreaching is every bit as absurd as it sounds.”
As I said before, being a POW is not a crime, so the 400,000 would not have had any right to challenge their being held. But ask yourself, if a German POW held in the USA was charged with murdering another German POW in the same camp, which or course is crime, how should he be tried? Perhaps by a military court, but supposing that that court were not fair? Would the Supreme Court not have final say? Of course it would.
Another comment:
Why Do Terrorists Have Rights, Or, A Government, Restrained
By reblogger
Saturday Jun 21, 2008 | Reads:6
This is Reblogged from The Albany Project
There is a lot of debate in the public space this week over the impact of the United States Supreme Court's ruling that gives detainees in a "holding pattern" at Guantanamo Bay access to the United States Courts for the purpose of presenting petitions of habeas corpus.
It is a generally accepted misunderstanding that the Court's ruling gave new rights to the detainees, which seems to be the issue that is the most controversial.
The purpose of today's discussion is to explain why that view of the ruling is dead wrong...and to offer some thoughts on why this ruling might actually be one of the most important "restraint of government" rulings to have come down the pike in some time.
So off we go, eh?
First, the background. The Supreme Court has ruled in Boumediene et al. V. Bush, President of the United States, et al. that some Constitutional protections do extend to "non" US territory, and that the Military Commissions Act can not restrict the US Courts from having jurisdiction over "any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001."
The Government had attempted to argue that because the Guantanamo Bay Naval Station's holding facility is located on Cuban territory Constitutional protections do not apply, and that view was dismissed by the Court. The Court instead relied on a concept known as the "Territorial Incorporation Doctrine." which grants some, but not all, of the Constitution's rights to those who live in US Territories...and as the Court noted, having "complete and uninterrupted control of the bay for over 100 years" pretty much makes it a US Territory, despite its physical location.
And that's where we begin to address the question of whether this ruling gives new rights to detainees.
In reading the ruling, one thing that stands out is that the Court is not so much empowering the Plaintiffs as it is restraining the power of Government to operate outside the control of the Constitution-that the Court is saying that whatever the United States Government does, to the extent the sovereignty of other nations allows, it must do it within the framework of that document...and that despite the Administration's desires, there is no legal basis to deny these detainees access to any judicial forum beyond the military tribunals offered by the Military Commissions Act. This from Boumediene V. Bush:
And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained "ultimate sovereignty" over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government's view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.
Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not "absolute and unlimited" but are subject "to such restrictions as are expressed in the Constitution."
The Court goes on to suggest that if the Government's view were to be upheld, it would be possible for the President and Congress to interpret law. The Court says that is not allowed, and refers to one of our most fundamental legal precedents to illustrate its point. To quote the 1803 case Marbury v. Madison:
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
Why shouldn't we allow Government, from time to time, to act outside of the Constitution? There are those who will point out that we are in dangerous times, and that it is sometimes necessary for the Government to take exceptional measures to ensure our protection.
The answer is fundamental: the Constitution exists to enumerate exactly what Government is allowed to do. In this country We, The People, control all the rights and liberties of our Nation...and we grant to Government some powers from time to time as we choose through the Constitution. From time to time we also remove some of those powers.
What we never do is allow Government to grant unto itself rights, or to strip We, The People of rights.
The Court, in this ruling, reasserts that most basic of American principles-that Government is under the control of The People-that it is not a power unto itself, that its powers derive from the grants we give it...and that every person affected by the Government's actions has a basic right to contest those actions, whether the Government likes it or not.
This is the fundamental difference between freedom and despotism; and we are the most privileged Nation on Earth for exactly that reason.
Straw Man: A straw man argument is a logical fallacy based on misrepresentation of an opponent's position. To "set up a straw man" or "set up a straw-man argument" is to create a position that is easy to refute, then attribute that position to the opponent.
Example:
What we never do is allow Government to grant unto itself rights, or to strip We, The People of rights.
How long ago did we start considering enemy combatants and sworn enemies of this country We, The People?
Just curious…
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