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The Imperial Judiciary By: Joseph Klein
FrontPageMagazine.com | Monday, July 07, 2008


For the first time in our nation’s history, the federal civil courts are actively involving themselves in the conduct of war, overriding the judgment of the two elected branches of government.

In its latest demonstration of an imperial judiciary, the Supreme Court struck down a provision of the Military Commissions Act of 2006, which had stripped the federal courts of jurisdiction to hear habeas corpus petitions from terrorist suspects designated as enemy combatants who were seeking to challenge the lawfulness of their detentions. Justice Kennedy’s 5-4 opinion claimed that the inordinate delay in providing them with a hearing before a ‘neutral’ decision-maker concerning the legitimacy of their detentions justified the Court’s granting of habeas corpus, even though much of the delay was caused by the detainees’ own lawyers’ protracted appeals.

The Court trampled upon the President’s exclusive constitutional powers as Commander-in-Chief. It also ignored Congress’ exclusive constitutional prerogative to suspend habeas corpus in the event that it finds there to be a continuing danger to public safety arising from an invasion, which we surely suffered on 9/11 and which al Qaeda’s leaders have threatened to repeat on a much larger scale.

We were attacked on our own soil by a global terrorist network whose members purposely targeted innocent American civilians for murder. Bin Laden had declared war on the United States several years before the attack and followed up with devastating effect. This certainly qualifies as an “invasion” and a threat to our “public safety” that justified a Congressional decision to suspend the constitutional privilege of writ of habeas corpus for designated enemy combatants. The threat of more attacks on our home soil continues unabated. Our soldiers went into Afghanistan to uproot al Qaeda’s principal sanctuary. We faced an enemy who did not wear military uniforms, who did not fight under any official state banner, and who did not distinguish between military and civilian targets. Prisoners taken into custody were in possession of information that could be valuable to our intelligence in preventing further attacks. If released, a prisoner could return to combat or engage in more terrorist attacks against civilians in this country and elsewhere. The Supreme Court ignored these realities in favor of abstract pronouncements.

While ruling that the formality of Cuban legal sovereignty over the land that the United States leased for its base at Guantanamo should not prevent a finding that the U.S. exercised sufficient control to deem Guantanamo within U.S controlled territory for habeas corpus purposes, the Court was perfectly willing to ignore the clear language and intent of Congress in the Military Commissions Act of 2006 by declaring that the statute “does not purport to be a formal suspension” of habeas corpus (emphasis added). Incredibly, the Court also complained that the statute failed to provide the suspected terrorist captives with a remedy of release from custody, despite the fact that more than 500 detainees have been released from Guantanamo without the need for any intervention from the courts.

The Supreme Court proceeded from an inherently fallacious premise, its presumption that the detention of enemy combatants in wartime is an act of punishment rather than a matter of security and military necessity. In fact, the purpose of military detention is preventative in nature. Releasing alien enemy combatants before the end of the hostilities, with which the military prosecuting the war found that they were connected, would only allow them to rejoin the fight against coalition forces and innocent civilians. An example is former Guantanamo detainee, Kuwaiti Abdullah Saleh Al Ajmi, who blew himself up in a suicide attack in Iraq in April 2008, killing seven people, including two police officers, and maiming twenty-eight more. Al Ajmi had been released three years earlier.

It is believed that as many as 10 percent of former detainees have returned to terrorist activities. The problem is that we will not know which of the detainees being released will fall into that 10% category until it is too late.

The result of the Supreme Court’s muddled reasoning, in the words of Justice Scalia’s dissenting opinion, was to defer to “the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants.”

Proving Justice Scalia’s point and the adage that bad cases make bad law, the lawyers for suspected terrorist detainees with indisputable ties to al Qaeda are now seeking to stop the military trials that are scheduled to be carried out under the Military Commissions Act. They want to extend the reasoning of the Supreme Court’s habeas corpus ruling to argue that our enemies should be entitled to virtually all of the constitutional rights accorded to a criminal defendant in our regular courts, including the right to confront all witnesses against them irrespective of national security concerns.

The terrorists’ advocates are starting their latest campaign with Salim Hamdan, the driver and confidante of Osama bin Laden who allegedly received weapons training in Afghanistan and transferred weapons to al Qaeda security. He aided and abetted bin Laden’s murderous plots.

Hamdan’s lawyers had managed to keep him out of a military trial four years ago on the theory that the President alone had approved the process. Congress has since passed the Military Commissions Act of 1996 that aligned the two elected branches of government together and added certain procedural protections for the accused detainees to have their trial verdicts reviewed in federal appeals court. His lawyers, blinded by their twisted notion of justice, are seeking an immediate injunction to block a new military trial for Hamdan under the revised process legislated by Congress. They say that it does not guarantee this alien associate of bin Laden, caught in connection with hostilities aimed against the United States, a fair trial.

Hamdan’s lawyers have brought their injunction request to Federal District Court judge James Robertson, the same judge who ran interference for Hamdan’s lawyers four years ago. From all accounts, Judge Robertson is set to do their bidding again. The judge is expected to stop Hamdan’s military trial from even beginning as scheduled on July 21st. Such a pre-emptive strike would not even wait for a record of the actual trial to determine its fundamental fairness.

Back in 2004, Judge Robertson ruled that Hamdan may be eligible for the same Geneva Convention prisoner-of-war protections accorded to soldiers fighting for a state and wearing uniforms or other military insignia to distinguish themselves from civilians. Under the Geneva Convention, combatants are entitled to the additional protections of POW status if they meet certain conditions, namely that they are members of the armed forces or a militia belonging to a party to the conflict. They must be organized under a command structure, have a fixed distinctive sign recognizable at a distance, carry their arms openly and conduct their operations in accordance with the laws and customs of war.

Terrorists who deliberately target innocent civilians in violation of the most elementary laws of war, impersonate civilians or police to infiltrate and then assassinate their enemy, hide among the civilian population, and use mosques as terrorist sanctuaries deserve no such protection. They vow to destroy the legal system that their lawyers try to use to shield the terrorists from the consequences of their actions.

Hamdan may be a small fish in the scheme of things, but the terrorist advocates are using his case to set a precedent that would apply even to the most dangerous of terrorist detainees such as Khalid Sheikh Mohammed, the self-confessed master-mind of 9/11. Indeed, the ACLU has offered to represent Mohammed in order to ensure that he gets a “fair trial” as part of a project they call the John Adams Project. Adams and his fellow founding fathers must be turning in their graves.

The ACLU and sympathetic judges like James Robertson defy all rational bounds when insisting on the full-bore application of the Geneva Convention and of all of the Constitution’s due process protections for terrorist suspects – against the wishes of Congress and the President as Commander-in-Chief. A United Nations Special Rapporteur visiting the United States to report on our criminal justice system for capital crimes added his two cents last week when he criticized the U.S. government for the lack of fair trials for those incarcerated at Guantanamo Bay. He stated that any death sentence that arises from what he called “unfair trials” of alien enemy combatants would violate international law.

They are all proving Abraham Lincoln’s observation that civil courts are not equipped to handle imminent threats to public safety arising from rebellion or invasion. In a letter he wrote in 1863, Lincoln pointed out the danger that, in dealing with the rebel insurgents’ own “unrestricted effort to destroy Union, Constitution, and Law, all together, the government would, in great degree, be restrained by the same Constitution and Law, from arresting their progress.”

Lincoln went on to say that “certain proceedings are constitutional when, in cases of Rebellion or Invasion, the public safety requires them, which would not be constitutional when, in absence of rebellion or invasion, the public Safety does not require them…in other words, that the constitution is not, in it's application, in all respects the same, in cases of Rebellion or Invasion, involving the public safety, as it is in times of profound peace and public security. The constitution itself makes the distinction.”

Lincoln was dealing with an existential threat to the Union caused by a domestic rebellion and acted without any Congressional authority to suspend habeas corpus for U.S. citizens accused of insurgent activities against the United States government. Today we are facing an existential threat from a fanatical foreign enemy that has already attacked us once on our home soil, killing nearly 3000 innocent people, and that is determined to gain the means to destroy us. President Bush and Congress have acted together to prevent alien enemy combatants from abusing our Constitution as part of the terrorists’ elaborate plans of deception.

As long as incarceration in Guantanamo triggers full judicial involvement and the courts apply criminal law procedures to military detention, dangerous terrorists will be released to wreak more harm on U.S. citizens. This is the essence of an imperial judiciary, which is willing to risk thousands of innocent lives in order to assert its supremacy over the two elected branches of government in determining how to best handle the terrorist threat. The most dangerous of the detainees should be immediately sent to off-shore locations that are clearly beyond the reach of the federal courts or repatriated to their home countries for punishment under systems of justice more familiar to the terrorist suspects.



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