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Affirming Our Constitution By: Joseph Klein
FrontPageMagazine.com | Monday, February 26, 2007


The United States D.C. Circuit Court of Appeals upheld last week the constitutionality of the habeas corpus-stripping provisions of the Military Commissions Act of 2006.  Finally, we have witnessed an example of a court that understands its own limitations in fighting the fanatical terrorist enemies who pose the true threat to our Constitution.

Although its 2 to 1 majority decision was savagely attacked by the New York Times for putting “American liberty at the precipice,” all that the Appeals Court actually did was to defer to the two elected branches of our government in deciding how best to handle alien enemy combatant detainees who are suspected terrorists.

The Supreme Court had ruled last year in Hamdan v. Rumsfeld that Congress - not the President alone – had the authority to establish the rules governing military tribunals.  “Nothing prevents the President from returning to Congress to seek the authority he believes necessary,” according to Justice Breyer’s concurring opinion.  The Supreme Court’s Hamdan decision focused on the separation of powers involving the relative authority of the two political branches – Congress and the President.   The Supreme Court ruled in favor of Congress’s prerogatives under its legislative war making powers.  The issue was solved when Congress passed the Military Commissions Act signed by President Bush into law last October.  The President now has the authority that the Supreme Court said he needed from Congress to proceed with his alien enemy combatant detention program.  And Congress expressly intended this law to bar the federal courts from considering all pending and future habeas corpus petitions from alien detainees who are designated as unlawful enemy combatants.   During wartime, that determination belongs to the President as commander-in-chief under guidelines established by Congress.

In short, Congress and the President are now on the same page -  at least until the Democratic majority is able to repeal the law’s restrictions on habeas corpus petitions to the benefit of the terrorists, as some are trying to do.

The Appeals Court considered the history of the writ of habeas corpus, which was intended to afford prisoners the right to challenge their confinement but was not intended to be available to aliens “without presence or property within the United States.”    In determining whether the Guantanamo detention facility where the enemy combatants were being held was considered within the sovereign jurisdiction of the United States for this purpose, the Appeals Court again deferred to the judgment of Congress and the President as well as pointing out that Guantanamo is leased from the government of Cuba which retains sovereign jurisdiction over the territory. 

We can expect an appeal to the Supreme Court.  In addition to arguing that Guantanamo is under the operational control of the U.S. military, meaning that the detainees do have a presence in the U.S. for the purpose of being entitled to file a petition for a writ of habeas corpus, the appeal will most likely argue that a basic universal human right of the detainees has been violated when they are not allowed to file such a petition.  In other words, invoking the Geneva Conventions and the talisman of international law once again, the terrorist civil liberties crowd will try to convince the Supreme Court that the Military Commissions Act should be declared unconstitutional because its detention provisions defy international norms of ‘civilized’ conduct.   Indeed, they just got a boost from a decision handed down by Canada’s highest court on February 23, 2007, which struck down a law allowing the Canadian government to detain foreign-born terrorist suspects indefinitely while their deportations are under review.  The United States program director for Amnesty International was quoted in the New York Times as saying that the Canadian decision should serve as “a wake-up call that reminds us that civilized people follow a simple and basic rule of law, that indefinite detention is under no circumstances acceptable.”

Well, here is a wake-up call for the terrorists’ legal advocates.  Our enemies invaded our homeland on 9/11 and killed 3000 innocent people with their attacks on the World Trade Center and the Pentagon.  Having already declared war against the United States, they are actively plotting more murderous invasions as we speak and they have not been shy in saying so.  They have broken every law of war and civilized conduct in the books and then some.  The Constitution does not make habeas corpus an absolute right that must be made available even to our avowed foreign enemies during war.   Article I, Section 9 of the Constitution says flatly that “[T]he privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”  Neither the Geneva Convention nor any other international treaty or law supersedes the authority of our duly constituted government, in protecting its citizens, to suspend habeas corpus under such exigent circumstances.

We need not decide whether Abraham Lincoln had been correct in suspending habeas corpus rights for American citizens at the outset of the Civil War without Congressional authority.  Here it is Congress which has suspended habeas corpus rights – if they ever existed at all – for alien enemy combatants during wartime while our country remains under the threat of another terrorist invasion.  Congress has that authority pursuant to the conditions spelled out in Article I, Section 9 of the Constitution.  Congress is also granted the power to restrict the jurisdiction of the federal courts generally under Article III, Section 1.  

Nevertheless, lawyers for the terrorist detainees hope to exploit the inclination on the part of several members of the Supreme Court to be influenced by decisions of foreign courts and trends in international law – including Justice Kennedy, who may be the decisive swing vote.  Guantanamo is universally despised, the Justices will be told.  Indeed, in a pitch certain to make Justice Kennedy and the other globalist Justices uncomfortable, the detainees’ lawyers will argue how prolonged detention at Guantanamo is an affront to the Geneva Conventions.  They will attempt to pry completely open the door left ajar by the Hamden decision in which the Supreme Court had concluded that the benefits of civilian protection under Common Article 3 of the Geneva Conventions applied to suspected terrorists, including al-Qaeda.  And, they will point out that our northern neighbor’s highest court has just decided a similar case in the detainees’ favor.   Therefore, by this reasoning, the nine unelected Supreme Court Justices should disregard the express will of the two elected branches of our federal government, who exercised their constitutionally conferred powers, and declare the Military Commissions Act unconstitutional because it is out of step with international norms.

The Supreme Court should refuse to hear any such appeal since the President and Congress followed the Justices’ instructions to the letter in removing the limits that Congress had placed on the President’s authority.   They took Justice Kennedy at his word when he said in his concurring opinion last year, “[B]ecause Congress has prescribed these limits, Congress can change them.”   President Bush went to Congress, and Congress changed the limits.  In our Constitutional republic, that should be the end of the story.

If the Supreme Court should decide to take the case, Justice Roberts will not have to recuse himself as he did in the Hamdan case.  Hopefully, he will lead the Court in shutting the door outright on applying any international laws or foreign court rulings in deciding this matter, including the Geneva Conventions.  Instead, the Court must take the opportunity to strongly affirm the limitations on the judiciary’s powers to overrule the two elected branches’ conduct of war under our own Constitutional system of government.

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