Legal Commentary

SCOTUS disgrace: Foreign terrorists captured abroad held to have same rights under U.S. Constitution as U.S. citizens

By Beldar

It's a sad, sad day for our country. A majority of the members of the United States Supreme Court have shown themselves unable to distinguish between an existential military struggle ? quite literally, a war over the very existence of western civilization ? and ordinary street crime committed by U.S. residents wholly within America. The obvious and inevitable consequence of today's Supreme Court decision will be that terrorist killers presently in captivity, captured at the cost of American soldiers' lives and limbs, will be released instead of punished, and they will return to killing both Americans and others again.

The Supreme Court ruled today that terrorists who are citizens of foreign countries, who have never set foot within the United States, and who have systematically forfeited all the protections of the organized laws of warfare that would entitle them to be treated as prisoners of war, are, when captured on foreign battlefields by the U.S. military, nevertheless entitled to access to the federal court system of the United States ? in most essential respects, exactly as if they were lawful, taxpaying citizens born here, raised here, and arrested here by the domestic police for alleged crimes committed here.

If Osama bin Laden, wearing no uniform, surrounded by children as human shields, and in mid-stroke while he's sawing the head off a captured American nurse, is captured by American soldiers tomorrow in Pakistan or Afghanistan, then his rights to use the federal writ of habeas corpus to guarantee him the protections afforded by the United States Constitution will be, so far as I can determine, indistinguishable from my own if I were arrested at my home by the Houston Police Department on a warrant for overdue parking tickets.

The Supreme Court has so ordered notwithstanding the fact that the people's lawful representatives ? through statutes passed by their Congress, and signed into law by their president ? had otherwise decreed. Instead, five members of the Supreme Court have set themselves up above the rest of the people and government of the United States of America, and they have proclaimed that even acting together, the Congress and president lack the constitutional power to make other provisions for these foreign barbarians and monsters captured on foreign battlefields while trying to destroy America and everything related to it. In the measured words of Chief Justice Roberts' dissent:

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law?s operation.

And in the more fiery dissent from Justice Scalia:

THE CHIEF JUSTICE?s dissent, which I join, shows that the procedures prescribed by Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees; there has thus been no suspension of the writ, and no basis exists for judicial intervention beyond what the Act allows. My problem with today?s opinion is more fundamental still: The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court?s intervention in this military matter is entirely ultra vires [i.e., beyond the Supreme Court's own power].

Make no mistake about it: This was a naked, arrogant power grab of wartime, war-fighting power by the liberal wing of the Supreme Court. This is Anthony Kennedy, John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer doing their dead-level best ? not to protect you and me from the terrorists, but to protect the terrorists ? and to prevent Congress and the president from protecting you and me!

The readily foreseeable, and indeed inevitable consequence of this decision is that the United States government ? when forced to fight a military war as if it were street crime, and when forbidden to punish war criminals unless it can comply with the full range of procedural safeguards from our domestic criminal justice system ? will have to release captured terrorists who will then immediately return to killing. Their victims will be not just American soldiers, but innocent civilians of every nationality and religion (including Muslims). Again from Justice Scalia's dissent:

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. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court?s blatant abandonment of such a principle that produces the decision today.

This decision is a disgrace and a travesty. It's awful law and even more disastrous policy. It's the single worst decision of the United States Supreme Court in my lifetime, and quite arguably its worst in American history. It can't be sugar-coated. It can't be minimized. In all probability, it can only be thoroughly undone by a constitutional amendment, or by a pronounced change in the membership of the Court that will deprive the liberal wing of a crucial fifth vote in such cases and open the possibility of this decision being overruled.

(There is, still, a chance that Congress and the president could sidestep the decision by formally invoking the Suspension Clause based on the invasion of 9/11, and I think Pres. Bush should immediately propose such legislation, so that it becomes a campaign issue in November races for both Congress and POTUS if Congress doesn't promptly go along. But Congress and the president ought not have to "suspend" habeas corpus rights for foreign terrorists who never, ever in American history have been construed to have them in the first place.)

John McCain says he will appoint Supreme Court Justices in the mold of the four Justices who dissented. Barack Obama admits he will appoint more Supreme Court Justices in the mold of those in today's majority ? which means Justices who are eager to seize this sort of power from the American people and their elected representatives, claiming a constitutional entitlement to run this country. There is no difference between the two candidates remotely as stark as this one, and I don't think there is any difference that is more important.

Our enemies will never defeat us. We have the power to defeat ourselves, however, and today's decision by the Supreme Court is a terrible, tragic step toward such a defeat. What will you do in November? Will you help accelerate these judicial power-grabs? Or will you help reverse them?

Full post as published by BeldarBlog on June 12, 2008 (boomark / email).