5 - 4 Supreme Court of the United States
decision in Boumediene et al v Bush, President of the United States, et al,
announced June 12, 2008, has stirred up a predictable and diverse storm. Even The Wall Street Journal, usually a model of editorial objectivity and
reason, dramatically and sarcastically editorialized against the holding.
Suffice it to say that, upon the basis of reading the lengthy opinions in the
case, as distinguished from also reading all the briefs and hearing oral
argument, I very favorably evaluate the two Dissenting Opinions.
problem is not the rationale of any opinion or the one-vote margin. The
problem is the imperative need for Administration leadership and Congressional
Congress Foundation’s William S. Lind, a military-history scholar
recognized at home and abroad, some years ago defined the present state of
conflict as “Fourth Generation” war. In other words, warfare,
hostilities, armed fighting - however one cares to term it - in relatively
recent years has changed definitively since the Peace of Westphalia in 1648.
Thereafter, sovereignties, states or nations, however one characterizes them,
especially outside Africa, have fought one another (with, of course, some civil
wars, rebellions and revolts), as contrasted with warfare principally between
religions, ethnicities, clans and the like, all short of sovereign states.
Comes now Islamic extremism, however small as a percentile of the Moslem Faith
it may be, although substantial in numbers, and one encounters hostilities from
sources other than sovereignties.
we have the controversial prison at Guantanamo
Bay and a number of prisoners who are
not United States citizens
captured for the Fourth Generation warfare equivalent of hostilities against
the United States.
With that inevitably arise the difficult tasks of figuring how to investigate, interrogate
and try these individuals. Because they have been denied the Great Writ, more formally
known as the Writ of Habeas Corpus, and some have been imprisoned for years
without trial (although apparently, by imprisonment criteria, well treated)
objective critics - aye, and subjective agitators - of various motive are in
Commentary is the medium to analyze neither the Supreme Court opinions nor
(perhaps taking the easy way out) the details of necessary remedial
Administration and Congressional action. The need has persisted, and grown,
over the last several years. It may not be too late but late it is. The
George W. Bush Administration and the Democratic Congress must get serious. The
present undefined and unworkable impasse if continued inevitably will cause
more, if differing, trouble. The security of Americans well may be in jeopardy.