Upon reading the opinion in Boumediene v Bush, one must conclude that the majority knew where they wanted to go and simply had to figure out how to get there. Fred Thompson
Posted by Tina
I promised to bring you the thoughts of a few learned folks on the recent Supreme Court ruling, Boumediene v. Bush. Im happy to report I found two extremely good articles. The first comes from the editors of National Review and the second is Fred Thompsons article posted on Townhall.com. This is a great opportunity to discover more than media reporting will tell you about the law, and some history, regarding habeas corpus. I know you will enjoy the learning experience as you read these excellent articles.
Combating the Combatants Decision, by the Editors NRO
All hail the imperial court. ** In a bitterly divided 5-4 decision, the Supreme Court ruled Thursday in Boumediene v. Bush that alien enemy prisoners, waging a jihad against the American people and captured by our military in a war authorized by Congress, have a right under our Constitution to petition our courts for their release. So doing, the Court invalidated laws it had only recently implored Congress to enact, laws that provided these prisoners with generous protections never previously extended to enemy operatives in American history.
Justice Anthony Kennedy, writing for Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, dictates that Americans must regard enemies as if they were mere criminal defendants, entitled to an exacting legal process access to discovery, witnesses, counsel, etc. that will, as a practical matter, make it impossible to detain them without shutting down interrogations prematurely and informing the enemy of our national-defense secrets. ** There can be no justification for this stunning conclusion. Habeas corpus is the right to have the lawfulness of ones detention tested before a judge. It is enshrined in the Suspension Clause (Art. I, Sec. 9) of the Constitution the compact between the American people and the government they created in order to protect Americans from arbitrary arrest and adhesive conditions of confinement. As a judicial remedy, it extends only where the federal courts have jurisdiction.
The remainder of this article gives a review of history to back up the claims made by the editors beginning with a 1950 unanimous Supreme Court decision:
In 1950, the Supreme Court denied habeas corpus to alien enemy combatants in Johnson v. Eisentrager, a case involving German operatives captured in China and held in a zone of postwar Germany fully controlled by occupying American forces. Writing for a unanimous Court, Justice Robert Jackson observed that there had never in history been an “instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes”.
It appears that certain judges on the court do indeed think of the Constitution as a living document; a document that does not require the voice of the people to be altered.
Fred Thompsons article begins with the quote at the beginning of this post. His perspective is shared in a folksy style but the content bites hard:
“A Supreme Error, by Fred Thompson
How could it be when the justices seemingly wrote a map based on ideas cherry picked from over 400 years of established law and backfilled with justifications to create a new right for alien combatants that Americans themselves do not enjoy? ** They could have saved us all a lot of time if theyd told us what was clearly on their minds. ** They dont trust military tribunals to deal with those accused of being enemy combatants, even if the tribunals are following guidelines established by Congress. ** That the government has probably detained some prisoners at Guantanamo for longer than they should have. And that Guantanamo should just be closed. ** Though they are willing to give it lip service, they dont really believe we are at war at least not a real war. ** Therefore, they should create a new right for our nations enemies commiserate with the displeasure that they and the rest of the enlightened people have with this war, Guantanamo and the Bush Administration. At least this approach would have been an honest one and based upon about as much legal justification as the approach they took. ** But, instead as Justice Scalia pointed out in his dissent they for the first time in our nations history, conferred a Constitutional right of habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war a broader right than has been given to our own citizens. The court majority did so acknowledging that they could find no precedent to confer such a right to alien enemies not within sovereign U.S. territory. ** The majority had simply decided that prior courts had denied such rulings based on practical considerations. In other words in prior cases and prior wars it had just been too inconvenient to bestow the right of habeas corpus upon non-citizens in foreign jurisdictions. So, by focusing on what they saw as practical instead of those pesky court precedents based upon the issues of citizenship and foreign territory and the Constitution the majority reached the conclusion they wanted to, since what is practical is subjective. One can only ponder the state of our nation directed by the subjective instead of the Constitution.
I double dog dare any of you who are jumping for joy over this ruling to read the articles in their entirety and continue in your joyful jumping.