Boumediene

June 12, 2008, 11:30 am; posted by
Filed under Articles, Featured, Steve  | 1 Comment

I am compelled.

This morning the Supreme Court decided that the constitutional writ of habeas corpus applies to “alien enemies detained abroad by our military forces in the course of an ongoing war.”

Such an understanding of the Constitution has been absent throughout the last 230-some years of history and precedent. In fact, during WWII, in Johnson v Eisentrager, the Supreme Court rejected this very argument: “The privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign.”

Oh, and although three years ago, the Court graciously opined (in Hamdan v Rumsfeld) that the democratically elected branches of government had an important role in determining our policy toward terror suspects, now they have apparently changed their minds. The Court — unelected and unaccountable to the people — reigns supreme, and now our military must produce classified intelligence information to prove (under who knows what standard) the guilt of an enemy captured on the battlefield. As the Chief Justice pointed out in his dissent, the real winners here are the lawyers, for whom this will provide a flurry of work, now that they must shape our policy toward terrorists.

Just as sad — this decision will likely be applauded by BOTH major presidential candidates.

In the long run, we will likely release many of these suspected terrorists, rather than give them access to our classified evidence and, more importantly, how we found it. And they will again be free to kill our soldiers. Or us.

But don’t be too happy for them. Down the road, I expect our military to, shall we say, get around this problem. Unlike five members of the Supreme Court, our armed forces understand the proper response to someone who wants to kill you.


Comments

1 Comment to “Boumediene”

  1. Steve on June 13th, 2008 1:54 pm

    I’m happy to be wrong about McCain’s response.

Leave a comment!