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Liberty and Justices for Al-Qaeda By: Patrick Poole
FrontPageMagazine.com | Wednesday, July 05, 2006

The Supreme Court’s 5-3 ruling last week in Hamdan v. Rumsfeld, which struck down the Defense Department’s planned military tribunals for the enemy combatants held at Guantanamo Bay, should remind Americans that the most direct threat to our civil liberties doesn’t come from an imperial presidency or runaway Congress, but from the unelected, appointed-for-life philosopher kings of the federal judiciary. The Court’s majority in Hamdan was comprised of Justices Stevens, Breyer, Souter, Ginsberg, and (in part) Kennedy. Justices Scalia, Thomas, and Alito dissented. Chief Justice Roberts recused himself from the case as he was one of the D.C. Circuit judges who ruled on the matter before he was elevated to the High Court.

The Hamdan decision very well may go down in history as the turning point at which the executive and legislative branches began to curb judicial power by limiting judges from making public policy in the Global War on Terror, or when Supreme Court majorities began directing the military in violation of the checks and balances established in the US Constitution. This decision is nothing short of a grab for raw judicial power, but don’t expect the ACLU or any Leftist legal outfits decrying the Court’s move.


In making the Hamdan ruling, the Court’s majority launched a direct attack on the constitutional powers of Congress and the President. Congress enacted the Detainee Treatment Act (DTA) on December 30, 2005, which prohibited any member of the federal judiciary from hearing habeas corpus claims of Guantanamo detainees (like Hamdan’s). The DTA statute reads:


[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.


As is their right under Article 3, Section 2, Clause 2 to make exceptions to the appellate jurisdiction of the Supreme Court, Congress passed the DTA to prevent the Court from hearing cases like Hamdan. In fact, during the congressional debate over DTA, both sides acknowledged that the legislation would prevent the Court from considering Hamdan’s appeal.


But in a Gold Medal performance to rival that of Mary Lou Retton, the majority of the Court engaged in legal gymnastics to ignore the constitutional check imposed by Congress. This was the chief complaint of one of the Court’s dissenting members in the case, Justice Scalia, who objected to the Court’s majority circumventing the clear exercise of constitutional Congressional power in limiting the Court’s jurisdiction on this matter:


This provision “t[ook] effect on the date of the enactment of this Act,” §1005(h)(1), id., at 2743, which was December 30, 2005. As of that date, then, no court had jurisdiction to “hear or consider” the merits of petitioner’s habeas application. This repeal of jurisdiction is simply not ambiguous as between pending and future cases. It prohibits any exercise of jurisdiction, and it became effective as to all cases last December 30. It is also perfectly clear that the phrase “no court, justice, or judge” includes this Court and its Members, and that by exercising our appellate jurisdiction in this case we are “hear[ing] or consider[ing]…an application for a writ of habeas corpus.” (Scalia dissent, pp. 1-2.)


But the Court’s majority in the Hamdan case didn’t just attack the delegation of authority to Congress; they also attacked the president’s powers to make rules in accordance with Congressional directives in the Authorization for Use of Military Force (AUMF) passed immediately after 9/11. In the AUMF, Congress authorized the President to draw up rules to conduct military judicial commissions to try those enemy combatants who are captured.


This is not something new being done. Virtually all congressional legislation charges the executive branch to draw up rules in accordance with the law. That was true in this case, as well. The Bush administration spent three years establishing the rules for the military commissions, and in one fell swoop, the Court’s majority threw that all out. As the Court’s dissenters note in Hamdan, this decision intrudes on the executive powers to conduct war and the historic deference given to the administration to make rules in accordance with legislation passed by Congress. In his dissent, Justice Thomas makes this very point:


The plurality’s willingness to second-guess the Executive’s judgments in this context, based upon little more than its unsupported assertions, constitutes an unprecedented departure from the traditionally limited role of the courts with respect to war and an unwarranted intrusion on executive authority. And even if such second-guessing were appropriate, the plurality’s attempt to do so is unpersuasive. (Thomas dissent, pp. 8-9.)


But it is not just the power of the legislative and executive branches under attack in the Supreme Court’s majority opinion in Hamdan: the Court undermines its own authority as well by tossing out almost 150 years of jurisprudence on military commissions to impose its new judicial interventionist vision.


You might recall during the recent confirmation hearings for Chief Justice Roberts and Associate Justice Alito that the concept of stare decisis was about the only thing you could get out of leftist judicial commentators on why to oppose their respective nominations. Roberts and Alito were going to undermine the historic precedents of the Court, we were repeatedly told.


And yet in Hamdan, the Court steamrolled over stare decisis to get the verdict they wanted. Congress limited the appellate jurisdiction of the Court to hear habeas corpus petitions going back to the Civil War-era, which the Court back then recognized in Ex Parte McCardle:


Without jurisdiction the Court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the Court is that of announcing the fact and dismissing the cause.


The majority of this Court, however, wasn’t about to be guided by stare decisis in their decision-making. Justice Thomas notes that the Court abandons other long-upheld precedents related to the President’s power to form military commissions, such as Ex Parte Quirin (1942) and Johnson v. Eisentrager (1950), in order to reach their decision in Hamdan.


There are many more constitutional and legal points that could be raised about the Hamdan decision that are best left to more capable observers than I. There are, however, some important issues and concerns about how the Court perceives the War on Terrorism that I think are worth mentioning here.


First, it is clear that most of the members of the Supreme Court are prepared to grant the illegal combatants captured by Allied Forces rights under the Geneva Convention despite the fact that they are not due to them under the Convention itself. The terrorist organizations waging jihad against America have made it clear that they do not believe themselves bound to the rules of war established by the Geneva Convention.


The unwillingness of the jihadist forces to afford US soldiers their rights under the Geneva Convention was ruthlessly seen two weeks ago when Pfc. Thomas Tucker and Pfc. Kristian Menchaca were captured by al-Qaeda insurgents in Iraq, beheaded, their bodies mutilated and booby-trapped to kill members of the U.S. recovery team – all in contravention of internationally accepted rules of war.


But the members of the Court have built a precedent in Hamdan to conclude that enemy combatants are not to be treated as illegal combatants – even though they are under the most basic of definitions – as long as they are captured in a country that is a signatory to the Geneva Convention. This is a bizarre interpretation of the rules of war that undermines the very reason why the US is a signatory to the Geneva Convention – to protect US armed forces. The killings of Pfc. Tucker and Pfc. Menchaca demonstrate the folly of the Court’s approach.


If this is where the Court intends to plant their flag on the status of illegal combatants captured in the War on Terror, then perhaps President Bush should order all such combatants summarily executed under the Geneva Convention instead of having unelected judges and well-heeled Leftist legal groups trampling over the Constitution to intervene and impose their own policies. Dead men don’t have legal standing.


Secondly, it seems the majority of the Supreme Court still slumbers in their pre-9/11 fantasy world where terrorism is considered a law enforcement issue instead of military justice. This failed policy reigned during the Clinton Administration, which witnessed an unabated escalation of terrorist violence against the US beginning with the 1993 World Trade Center bombing to the attack on the U.S.S. Cole, and culminating on 9/11.


And the Court in Hamdan expresses its belief that criminal standards and rights should apply, and terrorist should be tried only if they are caught “redhanded”. Justice Thomas noted the slippery logic of the majority’s approach:


…on the plurality’s logic, the AUMF would not grant the President the authority to try Usama bin Laden himself for his involvement in the events of September 11, 2001. (Thomas dissent, p. 9, fn. 3.)


The criminal justice approach advocated by the Court demonstrates their unwillingness to come to terms with the nature of the war we are fighting against terrorism. A common saying among military leaders is that America is always fighting the last war. Thanks to the Supreme Court’s decision in Hamdan, lacking any response by Congress, the Court has condemned us to fight on terms more appropriate to the Napoleonic Wars than what is actually needed to win the War on Terror.


A third concern is that the attacks on the Bush administration’s policies on the War on Terror are being driven by the most radical elements of the Left. Hamdan’s case was being handled by the George Soros-funded Center for Constitutional Rights (CCR). The views of the CCR attorneys are so extreme that you would think that the staff of the ACLU drove cars with “Buchanan for President” bumper stickers.


The President of CCR, Michael Ratner, argued in an earlier case, Rasul v. Bush, that captured Taliban and al-Qaeda fighters should not be detained and held by U.S. forces at Gitmo, and he has said that Saddam Hussein should not have to face a war crimes tribunal because he is a victim of US aggression. Ratner, a law professor at Columbia University, comes from a family of means (think Paris Hilton with a law degree). His brother, Bruce, owns the New Jersey Nets, and his family controls Forest City Enterprises, a mega-real estate developer that has been called the poster child for eminent domain abuse. Should it be any surprise that the Ratner family’s favorite politician and campaign contribution recipient, House Minority Leader Nancy Pelosi, was one of the first individuals to hail the Court’s Hamdan decision?


As has been the complaint of conservatives since the failed Bork nomination during the Reagan Administration, what the Left cannot achieve through presidential and congressional elections, it is perfectly content to obtain through the unelected judicial plutocracy. In fact, it is their preferred method of “political” involvement. No need to convince the unwashed masses. What the Ramdan decision shows is that the extremist elements in the legal community, embodied by Ratner and the CCR, are not only being heard, but followed by the members of the Court. That is a danger in and of itself.


The dissenting members of the Court in Ramdan themselves identified this concern of the radical position adopted by the majority and the potential implications it could have on the War on Terror. For the first time in 15 years on the High Court, Justice Thomas read his dissent from the bench when the decision was announced. In his dissent, he challenged his colleagues to get a grip on post-9/11 realities:


Today a plurality of this Court would hold that conspiracy to massacre innocent civilians does not violate the laws of war. This determination is unsustainable. The judgment of the political branches that Hamdan, and others like him, must be held accountable before military commissions for their involvement with and membership in an unlawful organization dedicated to inflicting massive civilian casualties is supported by virtually every relevant authority, including all of the authorities invoked by the plurality today. It is also supported by the nature of the present conflict. We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers. But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U.S.S. Cole, and the attacks of September 11—even if their plots are advanced to the very brink of fulfillment—our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists “redhanded,” ante, at 48, in the midst of the attack itself, in order to bring them to justice. Not only is this conclusion fundamentally inconsistent with the cardinal principal of the law of war, namely protecting non-combatants, but it would sorely hamper the President’s ability to confront and defeat a new and deadly enemy. (Thomas dissent, pp. 28-29)


There are some bright points to be seen for those who see the glass half-full. The Court did not question the Bush Administration’s right to detain terrorists or object to the the existence of the prison at Gitmo. Nor did they free Hamdan or any of his terrorist associates.


Within hours of Court’s decision, members of Congress were openly discussing options to counteract the ruling, such as adopting the Defense Department’s military commissions procedures directly as a statute and clarifying that there are no reservations to their removal of the High Court’s appellate jurisdiction for habeas corpus petitions from prisoners at Gitmo.


But as much as they felt possible, the Court majority has tried to tie the hands of the Bush Administration in conducting the War on Terror and subverting the unmistakable intentions of Congress in passing the AUMF and removing the Court’s appellate jurisdiction in these habeas corpus cases. In that effort, they have attacked the constitutional powers of both the Executive and Legislative Branches, all while steamrolling over a century and a half of Supreme Court precdents to get where they and their Leftist litigating friends wanted to go.


If their recent efforts are any indiciation, the majority of justices of the Supreme Court appear to be ready to impose their own policies regardless of what the law and the Constitution prevent them from doing. For Congress to fail to respond to this judicial assault accordingly could jeopardize our efforts in the Global War on Terror and leave our nation vulnerable to further judicial attacks on our constitutional form of government and our most basic freedoms while giving comfort and aid to our sworn enemies.

Let us all pray that the mess created by the Supreme Court in Ramdan is resolved before Osama bin Laden and his crew are caught and before the Court decides to throw open the doors of Gitmo. With our present runaway judiciary, there’s no telling what the Court may do next.

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Patrick Poole is a regular contributor to Frontpagemag.com and an anti-terrorism consultant to law enforcement and the military.

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