Monday, June 16, 2008

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.

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