Squaring the Culture

The tyranny of the left grew by a huge leap on Thursday when the US Supreme Court struck down the Military Commissions Act of 2006 (hereafter, “MCA”) as unconstitutional, in Boumediene v Bush, The act of granting habeas corpus rights in American courts to captured enemy soldiers who are not Americans, are not located in America, have never lived in America or visited America, who would rather not be anywhere near America, and who already have more rights than any combatants in the history of the world, is bad enough — when we’re fighting a war, it helps if our highest court does not act the Useful Idiot and aid our enemies’ most cynical tactics. It’s much worse that in order to do it, the Court arrogated to itself the right to enforce the terms of the US Constitution to anyone, anywhere on the globe, ironically in the name of limiting the power of the Executive and Congress.

The opinion of the majority reads like the rationalizations of a high schooler in trouble; it’s clear from the outset that the Court was squirming and trying to pretend there was no ruling precedent, though they clearly knew there was. Anthony Kennedy, speaking for the leftist wing of the Court, slithered through a lengthy history of habeas corpus in common law to prove that habeas corpus was a critical right (as though anybody doubted this) and hoping to illustrate that nothing addressed the question of granting rights to aliens captured in battle. The smokescreen attempts to obscure the thorough and probably deliberate misreading of the one precedent that directly addresses the question, Justice Jackson’s majority opinion in Johnson v Eisentrager, an attempt by German war criminals to obtain habeas corpus rights in American courts. I’m sure the true leftists urged the moderate Kennedy to write the opinion so as to avoid blame for it themselves.

Just so we can see what the leftist tyrants were attempting to avoid while blowing their ink cloud, allow me to quote the findings of the Court in Eisentrager:

Held:

1. A nonresident enemy alien has no access to our courts in wartime…

2. These nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States…

3. The Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States…

Clear enough? The Court does have the right to overturn previous decisions; this Court, however, chose instead to misrepresent Eisentrager, so as to invalidate a standing precedent without having to explain why.

The Court makes much of the length of detainment without hearing, ignoring (again, probably deliberately) the simple fact that it was the pending higher court appeals that prevented timely resolution in the prescribed military tribunals. The detained enemy combatants made sure they did not stand trial before military tribunals in order to make this very point possible. As Chief Justice Roberts points out in dissent,

Since the DTA became law, petitioners have steadfastly refused to avail themselves of the statute’s review mechanisms. It is unfair to complain that the DTA system involves too much delay when petitioners have consistently refused to use it, preferring to litigate instead.

The most ironic and laughable aspect of this decision is that the MCA, which the Court struck down, was specifically recommended by the same Court a mere 2 years ago as the remedy for the previous law, the Detainee Treatment Act of 2005 (hereafter, “DTA”). The Court in Hamdan v Rumsfeld, another case decided by leftist premeditation and in clear contempt of Congress, had decided that the DTA, though constitutionally sound, did not apply to cases underway before the DTA was passed, but stated plainly that the Congress could specify the law to apply to such cases if they chose. Congress and the President proceeded promptly to pass the MCA, adding precisely what the Court had told them was lacking in the DTA. Quoth Justice Scalia in dissent, “Turns out they were just kidding.”

Chief Justice Roberts and Justice Scalia both wrote unusually harsh dissents, both drawing the conclusion that the majority decision was really about extending Court authority rather than about protecting any particular rights.

From 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 to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.

Roberts adds that the MCA grants the detainees everything the majority opinion claims would be required in order to meet the Constitutional standard — the right to hear the charges, to challenge the basis for detention, to call witnesses, to appeal. to employ counsel, to challenge the factual record — and that the fact the MCA-defined procedure was not followed should have prevented the plaintiffs from being heard by the Supreme Court in the first place. He also notes the creation of a new, “reverse-facial” test for constitutionality in which the majority claims that if it can imagine any situation in which the statute might be used in an unconstitutional manner, it must be struck down in its entirety; the usual standard is that the Court must “establish that no circumstance exists under which the Act would be valid.” (US v Salerno, 1987).

Scalia’s dissent began with an assessment of the damage done by the majority opinion, both to the war…:

America is at war with radical Islamists… 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…

At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield… These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified… If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase.

… and to the separation of powers:

And today it is not just the military that the Court elbows aside… [It is] clear that Congress and the Executive— both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting… What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails…

Even today, the Court cannot resist striking a pose of faux deference to Congress and the President … the Court says: “The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.” Ante, at 69. Indeed. What the Court apparently means is that the political branches can debate, after which the Third Branch will decide.

He goes on to explain the majority’s complete misreading of the Eisentrager case, pointing out (as I did, above) that contrary to the claim of the majority that Eisentrager had set up a “functional” test for jurisdiction, the Court had explicitly found that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign.

In a case related by the ideology of the judge, an Ohio Circuit Judge yesterday struck down Ohio’s death penalty statute on bizarre procedural grounds. The Volokh Conspiracy posted the link to the photo from the USA Today article describing the decision.

We’ve grown used to the left in America abusing the Courts in order to jam their agenda down the nation’s throat. I would be calling for the impeachment of judges if there was any possibility that the procedure would be finished while President Bush was still in office. As it is, this case illustrates how crucial it is that liberal Democrats be kept out of the Oval Office this year; the liberties of the nation are clearly not safe in the hands of judges who let their ideology decide their cases, and then play with the words dishonestly until they justify the result their ideology demanded.

Ed Morrissey adds his observations about the case at yesterday’s Hot Air.