"No Prisoners" Says the Supreme Court

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation of-powers principles to establish a manipulable "functional" test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliensabroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

The Nation will live to regret what the Court has done today. I dissent.

Boumediene v. Bush, No. 06-1195, slip op. at 25 (U.S. Jun. 12, 2008) (Scalia J., dissenting).

The Supreme Court has opted for a "no prisoners" policy.

Only in America could unlawful foreign combatants have rights under the US Constitution. No other country, nobody else's judges -- are that crazy. But the liberal majority of the Supreme Court assuredly is: holding this morning, in a 5-4 decision, that the rights of foreign terrorist suspects held indefinitely and without charges have been violated -- and that the detainees -- foreigners -- have rights under the US Constitution.

The usual suspects (the Court's liberal wing), also held that the detainees could challenge their detention in the US Courts. Among other things, the Court's decision invalidates a provision of the Military Commissions Act of 2006 denying these detainees the right to file petitions of habeus corpus.

As Justice Antonin Scalia wrote, the Court's decision ". . .will make the war harder on us. It will almost certainly cause more Americans to be killed."

This outrageous, ludicrous decision will be overturned, eventually, either by the Court itself or by amendment after the next horrible terrorist incident, or by legislation out of a different and better Congress taking these matters out of the hands of the Courts. Until this happens, however, the Court's decision will have the unintended effect of making things go harder for prisoners (or those few who survive to obtain such status) ensuring that US forces simply arrange for terrorists not to surrender. If prisoners are taken, they will (usually) be quickly handed over to foreign powers and their intelligence services, which do not pay much attention to writs issued by wacko-liberal Harvard Law graduates from Planet Pluto.

In any case, the whole experiment of holding prisoners anyplace in reach of the lawyers or the Courts will clearly not be repeated. The Court is supposed to uphold the law, not make it absurd.

Where does this stop? Does everybody, anywhere, get to be an American citizen ? These people are not even lawful combatants. Under the traditional usages of war, the Guantanamo detainees were not soldiers, but naked pirates who could have lawfully been shot out of hand. Now the Supreme Court (or rather, a faction of it) created by our Constitution, supported by our taxes, which holds forth in a country built on the sacrifices of our soldiers, that is charged with protecting our law -- dares to say that these people, who would kill you and your family in their beds if they could -- are as good as you and I: that they have access to your Constitution and your civil rights.

Justice Scalia is right: the nation is going to live to regret what was done today. I wonder how many Americans are going to have to die so that an American court can see that precious Lakhadar Boumediene (an alien, not an American citizen) gets his US Constitutional rights ? The Supreme Court majority has engaged in lawfare against the law, against the war, and has connnived at the defeat of the nation.