Liberals have proven yet again that they are absolutely not to be trusted with power.
In a decision stunning for it’s breathtakingly counterproductive stupidity, liberal Supreme Court Justices John Paul Stevens, Stephen Breyer, David Souter and Ruth Bader Ginsburg ruled last Thursday “that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.” Conservative Justices John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito held the very different view that foreign enemies of the United States captured while trying to kill American soldiers on foreign soil should not have the right to access American courts.
“At its heart, the 70-page ruling says that the detainees have the same rights as anyone else in custody in the United States to contest their detention before a judge. [Justice Anthony] Kennedy also said the system the administration has put in place to classify detainees as enemy combatants and review those decisions is not an adequate substitute for the right to go before a civilian judge.”
Senator Linsey Grahem (R-SC), who helped Senator John McCain write the military commissions law, said, “What happened yesterday was unprecedented. Americans are going to be shocked to find that that mastermind of 9-11, Khalid Sheikh Mohammed, now has the same legal standing as an American citizen.”
Solicitor General Paul Clement has pointed out that the process in place already provided “combatants being held at Guantanamo Bay, [the opportunity to] enjoy more procedural protections than any other captured enemy combatants in the history of warfare.” Congress had already given Guantanamo Bay prisoners more rights than any prisoners of war, in any war, ever. Congress provided enemy combatants the the 2005 Detainee Treatment Act (DTA); they provided a Combatant Status Review Tribunal (CSRT); and a bi-partisan Congress (by 65 to 34 in the Senate) had already previously mandated that the 270 Guantanamo detainees were not free to avoid these procedures by filing habeas petitions in whatever federal district court they choose.
But the detainees’ lawyers have contended that the current law fails to protect the constitutional rights their clients were entitled to receive. They have demanded full habeas corpus rights, a constitutional protection that forces the government to justify in an open courtroom legitimate reasons an individual needs to be behind bars.
And now they have those rights. Yeah for them.
The decision also reveals the enormous divide between the two presidential candidates:
John McCain said Friday that the Supreme Court ruling on Guantanamo Bay detainees is “one of the worst decisions in the history of this country.”
“We are now going to have the courts flooded with so-called … habeas corpus suits against the government, whether it be about the diet, whether it be about the reading material. And we are going to be bollixed up in a way that is terribly unfortunate because we need to go ahead and adjudicate these cases,” he said.
“Barack Obama released a statement Thursday saying the Supreme Court decision “ensures that we can protect our nation and bring terrorists to justice while also protecting our core values.”
“The Court’s decision is a rejection of the Bush administration’s attempt to create a legal black hole at Guantanamo – yet another failed policy supported by John McCain,” he said. “This is an important step toward re-establishing our credibility as a nation committed to the rule of law and rejecting a false choice between fighting terrorism and respecting habeas corpus.”
Notwithstanding the most liberal member of the Senate’s incessant attempt to demonize President Bush, the real “black hole” is the sheer number of questions this decision necessarily creates that must yet be answered. As Solicitor General Paul Clement pointed out, no nation has ever before in history granted so many rights and protections to its enemies as the United States now has. Just how many unintended consequences will this decision cause?
In order to get us to this point, the Supreme Court first had to toss out the principle of stare decisis (the abbreviated form of “stare decisis et non quieta movere” which means “stand by decisions and do not move that which is still.” No Supreme Court had ever before allowed an alien who was captured fighting against the United States to use its own courts to challenge his detention. Not until now.
As University of California at Berkely law professor John Yoo points out, “In World War II, no civilian court reviewed the thousands of German prisoners housed in the U.S. Federal judges never heard cases from the Confederate prisoners of war held during the Civil War. In a trilogy of cases decided at the end of World War II, the Supreme Court agreed that the writ did not benefit enemy aliens held outside the U.S. In the months after the 9/11 attacks, we in the Justice Department relied on the Supreme Court’s word when we evaluated Guantanamo Bay as a place to hold al Qaeda terrorists.”
One of the Justices who participated in the World War II decisions was the late Supreme Court Justice Robert H. Jackson. His worldview was further shaped by his incredible experience as Chief War Crimes Prosecutor at Nuremburg. In the 1950 opinion that was tossed out into the dustbin of history last week, Jackson denied habeas to a Nazi prisoner because in all of history 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 for a moment Jackson’s admonition in a free speech case heard by his Court:
“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.”
Today we have too many liberals and Democrats who would argue that the sacrifice of an American city of tens of millions is surely preferable to the water boarding of a single terrorist who knew of an impending attack but refused to communicate with US intelligence. Why? Because such a sacrifice of American blood would be preferable to the sacrifice of a single Constitutional principle (such as the penumbras and emanations that were used to justify abortion?) as liberals (mis)understand it. Realize that for all the pompous posturing and self-righteous indignation over water boarding, it was a non-fatal, non-harmful, and non-invasive interrogation technique that was used only two or three times at most when it was determined to be absolutely necessary by intelligence professionals.
The second thing tossed out was the Constitutional principle of the separation of powers, “which grants all war decisions to the president and Congress. In 2004 and 2006, the Supreme Court tried to extend its reach to al Qaeda terrorists held at Guantanamo Bay. It was overruled twice by Congress, which has the power to define the jurisdiction of the federal courts. Congress established its own procedures for the appeal of detentions.”
Joel J. Sprayregen, a former general counsel of the Illinois ACLU who finally saw the light of judicial sanity, put it this way in his article, ‘It Will Almost Certainly Cause More Americans to Be Killed‘ (available at):
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.”
In his blistering dissent, Justice Scalia said the decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.”
There are a couple of points that simply must be considered.
First of all, the practical impossibility of releasing Guantanamo detainees:
LONDON — More than a fifth of the approximately 385 prisoners at Guantanamo Bay, Cuba, have been cleared for release but may have to wait months or years for their freedom because U.S. officials are finding it increasingly difficult to line up places to send them, according to Bush administration officials and defense lawyers.
Since February, the Pentagon has notified about 85 inmates or their attorneys that they are eligible to leave after being cleared by military review panels. But only a handful have gone home, including a Moroccan and an Afghan who were released Tuesday. Eighty-two remain at Guantanamo and face indefinite waits as U.S. officials struggle to figure out when and where to deport them, and under what conditions.
The delays illustrate how much harder it will be to empty the prison at Guantanamo than it was to fill it after it opened in January 2002 to detain fighters captured in Afghanistan and terrorism suspects captured overseas.
In many cases, the prisoners’ countries do not want them back. Yemen, for instance, has balked at accepting some of the 106 Yemeni nationals at Guantanamo by challenging the legality of their citizenship.
Second (and related to the first), the sheer absurdity that results from granting our enemies captured on the battlefield our legal protections:
David Rivkin, a lawyer who worked in the administration of former President George H.W. Bush, concedes that some Guantanamo detainees may be innocent, but if the system for evaluating people seized as terrorists becomes any more stringent, he said, “we wouldn’t be able to hold most of these people, not because they’re innocent but because we don’t have enough information to establish that level of rigor because, in war, you rarely have this kind of information. So, we would be releasing all of them; the system would be broken from the other side.
Rivkin said he does not believe the U.S. government could justify detaining most of the Guantanamo detainees if it were put to the more rigorous test of a habeas corpus hearing in U.S. courts. Moreover, “I’ve been told, back when I was at Guantanamo, that Guantanamo itself has become a gigantic al-Qaida training cell — it’s like a graduate school, if you will, for these guys.”
And despite the best efforts of the U.S. government, in many cases, Rivkin said, countries don’t want to take back the detainees.
“Let’s assume quaintly that they’re not innocent shepherds. We cannot hold them, and we cannot send them to any other country. What are we supposed to do — give them political asylum here? Let them walk the streets?” Rivkin said.
At least six former detainees have been killed or captured after their release. As many as fifty have returned to fight against American forces. Considering that we’re talking about fewer than 400 detainees, that’s a large number. And it was military tribunals which released them; how many more murderous fighters will be released when civilian courts become involved?
We have moral idiots like Erick Goldstein, who wrote, “The United States can begin to regain its moral authority in combating terrorism when the Guantanamo Bay detention facility is closed. But that’s only if the government stops sending detainees back to places like Tunisia.”
The fact of the matter is that many of the countries that have been most vociferous in critizing Guantanamo have privately refused to accept their own citizens back. Most of these people are extremely dangerous.
When Guantanamo is closed because of liberal policies and strategies, mark my words, they will start ending up in places like Tunisia, and places much worse. The American soldiers’ only alternative would be to execute their enemies in the field. But the liberals who create this total disaster will certainly never admit their stupidity.
Third, how are we to legally proceed against enemies captured on the battlefield? Could we have possibly won World War II if our soldiers and Marines were ordered to collect forensic evidence of German and Japanese soldiers’ firing upon them to present in court? Could we have brought non-American witnesses to American court to testify? Could we have defeated our enemies when, following every battle, American servicemen had to return home to testify against the captured enemy?
How are our forces supposed to proceed when the liberals on the Supreme Court now implicitly order them to become Crime Scene Investigators gathering evidence instead of soldiers fighting a war?
And how do we keep the terrorists from using the discovery process that must necessarily result from granting them habeas corpus rights in U.S. courts against us?
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 defense 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. The Court’s decision undermines that result.
These are not theoretical dangers. In the United Kingdom, two dangerous terrorists are being released for lack of sufficient evidence to criminally prosecute them. An article titled “Abu Qatada: Terror chief next to be released on bail” by Security Correspondent Duncan Gardham illustrates what we have opened ourselves up to in this Supreme Court decision.
The release of terrorists known only as “U” and “Y” (in order to protect their oh-so-important privacy rights) due to lack of sufficient evidence reminds me of one of those cases of a terrified woman who is denied by the court of legal protection against a stalker due to lack of sufficient evidence until after he murders her.
President Abraham Lincoln famously suspended habeas corpus for two years during the Civil War.
In 1862, when copperhead democrats began criticizing Lincoln’s violation of the Constitution, Lincoln suspended habeas corpus throughout the nation and had many copperhead democrats arrested under military authority because he felt that the State Courts in the north west would not convict war protesters such as the copperheads. He proclaimed that all persons who discouraged enlistments or engaged in disloyal practices would come under Martial Law.
Among the 13,000 people arrested under martial law was a Maryland Secessionist, John Merryman. Immediately, Hon. Roger B. Taney, Chief Justice of the Supreme Court of the United States issued a writ of habeas corpus commanding the military to bring Merryman before him. The military refused to follow the writ. Justice Taney, in Ex parte MERRYMAN, then ruled the suspension of habeas corpus unconstitutional because the writ could not be suspended without an Act of Congress. President Lincoln and the military ignored Justice Taney’s ruling.
This Abraham Lincoln – regarded by many liberals and conservatives alike as the greatest American president ever – is the same Lincoln who disregarded the Supreme Court’s Dred Scott decision. In issuing the Emancipation Proclamation and freeing the slaves, Lincoln in effect said to the Supreme Court, “You are wrong.”
The Supreme Court has been terribly wrong before, and it is terribly wrong now. Alas, we don’t have a Lincoln who will stand up against the moral stupidity of the Court today.
Former Supreme Court Justice Louis Brandeis said, “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
Which is a more legally-precise way of saying, “The road to hell is paved with good intentions.”
Liberals live in a world of theory, and whenever the facts conflict with their theory, they simply ignore the facts. It doesn’t matter how idiotic their ideas are; it doesn’t matter how disastrous are the consequences: it only matters that they have good intentions.
We have placed ourselves at a significant disadvantage voluntarily. For the last several years, Democrats repeatedly threatened to prosecute telecommunications companies that assisted the Bush Administration with information following 9/11. The Democrats recently caved in on the new FISA bill after a lengthy and determined campaign to hold telecommunications criminally responsible for their cooperation with their government. Don’t think for a second that these companies will ever be so willing to assist the United States again. We will be more blind in the future thanks to Democrats.
And now judicial liberals have issued this stunningly stupid and self-defeating ruling. And they’ve done this terrible thing with all the “beneficent purposes” that Justice Brandeis warned about. Our valuable and vital national security secrets will go to the terrorists who would kill us, even as we are forced to free more and more of them to fight again due to lack of sufficient evidence to stand up in a civilian court of law.
The fact that Barack Obama has cheered their verdict is another powerful proof that he should never be allowed to become our president. If elected, you can count on Barack Obama to appoint Justices and judges who will go even further in undermining our ability to defend and protect ourselves. A vote for Obama is a vote for baring the nation’s throat to those who would slash it in a nanosecond.
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