By HORACE COOPER | Posted Monday, June 16, 2008 4:30 PM PT
The Supreme Court’s decision to strike down the so-called military tribunals law not only runs contrary to precedent and the U.S. Constitution. It is yet another dangerous example of the judiciary usurping the constitutional authority of the political branches of government and stands sharply at odds with the national security reality that Americans face.
We are in a global war with terrorists who seek to destroy our country and our way of life. This threat is real and actualized: They’ve attacked us at sea and on land, away and abroad.
While we didn’t initially recognize what they were doing, the body count revealed the truth: nearly 3,500 dead in the 21st century.
Unfortunately, this ruling, by denying the seriousness of the threat, will hinder our efforts to keep this number from rising.
While the errors in the case are numerous, several obvious ones must be addressed.
First, this decision marks the first-ever application of a constitutional right of habeas corpus in the entirety of American history for alien combatants held abroad in the course of an ongoing war.
The opinion completely ignores the reality that the “writ of habeas corpus” was always understood constitutionally and in common law as a matter exclusively for dealing with domestic detention — that is, detention inside the U.S. Other than the results of a major power grab by a judicial majority, there is no reason for discarding nearly 200 years of precedence in this regard.
Second, the court engages in a radical manifestation of judicial supremacy when it claims that the Detainee Act of 2005 was some kind of a means for Congress and the president to “govern without legal constraint” outside the U.S.
To ensure that it gets the final say, the court leaps past a basic and time-tested constitutional question of whether the litigants in question even have standing to raise a complaint in U.S. federal courts. As a result, there is no logical reason why the court couldn’t use this same argument as a justification for interfering and overseeing detentions in Iraq, Afghanistan or anywhere the U.S. is at war.
Third, this activist decision strikes down perhaps the most generous set of procedural safeguards ever afforded military detainees. Congress and the president worked carefully to craft a set of rules — having access to specialists and after careful review and debate.
The court sets aside these findings and doesn’t even list a set of replacements, observing instead that lower courts will develop them subject to their review. This time-consuming process of discovering and navel-gazing is precisely what the framers did not intend, especially with regard to national security matters.
Finally, the liberal majority takes great pleasure in noting that there is no recorded case in American history of denying jurisdiction outside the U.S. This logic is exactly backwards.
It has been so overwhelmingly accepted that the “writ of habeas corpus” applies only inside the U.S., should we be surprised that no one but the attorneys for desperate and dangerous terrorists and their liberal activists on the Supreme Court would make such an argument?
This decision also puts the servicemen and women who actually captured these rogue warriors on the battlefield on an equal playing field in our courts of law. Not unlike America’s failed “catch and release” immigration policy, the court’s actions envision a world where our men and women in uniform risk their lives capturing and detaining some of the most deadly terrorists on the globe only to find them eligible for release after a hearing before some liberal activist judge.
This is unconscionable, and it will mean more Americans are at risk of dying. This is not what our framers intended.
While reported as a loss for the Bush administration, the court’s ruling represents a major setback for our country’s national security. Emboldened terrorists will be less likely to surrender and end their plans for another attack. They will in some sense feel justified.
This ruling not only shackles America’s efforts to prevail in this worldwide clash of civilizations. It also gives energy and succor to an evil and restless enemy at a time when they should be given no sanctuary or encouragement.
Boumediene v. Bush makes it all too clear that courts simply are not the appropriate agents for directing the sophisticated and complicated policy prescriptions of statecraft and national security.
They are ill-equipped to assess the risks and benefits and they are immune from the accountability instrumental in ensuring that policymakers act in a manner consistent with the interests and needs of the American people in matters of national security.
Cooper is a national security and constitutional expert and a senior fellow at the American Civil Rights Union.