Posted by Curt on 16 June, 2008 at 10:39 am. 4 comments already!


The lefties won. No other way to put it when discussing the recent SCOTUS decision. They have torn the Constitution to threads to give rights to illegal alien enemy combatants. As Andy McCarthy points out in his article today, we don’t trust the judiciary to make habeas corpus decisions on their own. Thats why there are reams and reams of legislative guidance on the matter from Congress. Nothing exists for these enemy combatants and now hundreds of cases will be thrown at the feet of federal judges with no guidance from our elected officials.

The left in the country have succeeded in turning back the clock to September 10th, 2001. They’ve hindered our ability to successfully interrogate the worst of the worst of our enemy. They’ve hindered our ability to gather intelligence via electronic and telephonic means. They’ve hindered our ability to gather intelligence via the enemies financial transactions (SWIFT) and now the liberals on the Supreme Court have told us that we are not in a war. It’s all a criminal matter to be left up to the court system.

Eight years after 9/11 and we have come full circle with the possibility of the most liberal politician in our country being elected President of the United States.

The bullseye is back with a vengence.

Andy McCarthy rails against the decision:

Now the Court has decided that the combatants have constitutional habeas rights. If you can follow this, the bloc of liberal justices reasons that the framers designed our fundamental law to empower enemies of the American people to use the American people’s courts as a weapon to compel the American people’s commander-in-chief to justify his actions during a war overwhelmingly authorized by the American people’s elected representatives . . . even as those enemies continue killing Americans.


Naturally, Sen. Barack Obama and other hard-Left Democrats are thrilled with Boumediene. They are enthused by the prospect that federal judges, if left to their own devices, could turn these proceedings into full-blown trials, with all the constitutional protections they would gladly give our enemies if they thought voters would let them get away with it.

We shouldn’t let them get away with it.

Unduly empowered by the bedlam of unguided judicial proceedings, many jihadists will be freed. If that happens, Americans will be killed. It is that stark, and it should be that intolerable. It is the solemn responsibility of our lawmakers to prevent that outcome. With an election looming, with nearly 200,000 young Americans putting their lives on the line, and with an enemy working energetically to reprise 9/11, every member of Congress should be challenged to tell us where he or she stands on Boumediene and its aftermath.

And thats it in a nutshell. A total eviscerating of our Constitution to come to a popular liberal decision.

The war on terror is not like other wars. No war has a determinate end, but this one does not have a foreseeable ending scenario. With radical Islam, there will be no treaty, no terms of surrender, no conquering enemy territory. Instead, there is only vigilance until the enemy’s capacity to project power is quelled. Because of that, strict application of the laws of war — which permit indefinite detention until war’s end — strikes our influential legal elites as unduly onerous.

Our enemies, moreover, are terrorists who operate in the shadows, in civilian garb not military insignia. In a just world, that would inure to their detriment. In the world we inhabit, it perversely benefits them by sowing doubt about their status. It makes plausible the possibility that we have scooped up at least some people in error.

The public anger over 9/11 has faded. With a relentless campaign, fired by sympathetic media coverage, our legal elites have succeeded in raising popular concerns about the specter of innocents being held in perpetuity at the whim of the executive, without an opportunity to challenge their detention before an independent judge.

This was more of a political challenge than a legal one. Long ago, Congress and the administration should have joined forces to forge a comprehensive system that would answer those concerns. To their credit, the political branches did at least try to shore up the military detention system by providing, for the first time in history, enemy access to a civilian court — the D.C. Circuit federal appeals court — so jihadists could challenge the completed military proceedings. It is beyond arrogance that five Supreme Court justices did not allow that system to work; that, to bask in international huzzahs, they scrapped it before the D.C. Circuit could wrestle with a single case on a concrete record — before the tribunals could prove they were not kangaroo courts after all.

But Andy has an idea for a quick fix:

Long ago, our lawmakers enacted a statutory scheme to control pretrial detention in federal criminal cases. It is codified at Section 3142 of Title 18, United States Code. In cases involving the most serious charges and defendants with the most vicious criminal histories, Congress has directed courts to grant the government a presumption in favor of detention. In detention hearings, furthermore, the law permits the parties to proceed by offering hearsay and attorney proffers of evidence; the presentation of witnesses is rare, and needn’t be allowed at all. In addition, a court considering detention is entitled to rely on any information developed in other proceedings — including on the fact that a grand jury has found probable cause that the defendant committed the alleged crime.

Mind you, that is in civilian criminal proceedings where the defendant is presumed innocent. We have long permitted lengthy periods of incarceration without trial, much less conviction, and this system has repeatedly been upheld in the face of all manner of constitutional challenge.

Obviously, being held as an alien enemy combatant in a terrorist war against the United States is a far more serious matter than even the drug and violent crimes (to say nothing of flight risks posed by foreign defendants) that routinely result in civilian pretrial detention. Thus, Congress could quickly enact a statute requiring the district courts in combatant habeas cases to afford the commander-in-chief a presumption mandating detention. That is, if the government established a rational basis for believing the detainee was an enemy combatant, he would be ordered detained unless the detainee proved beyond a reasonable doubt that he was not an enemy combatant.

Congress could provide for the presentation of evidence by hearsay, proffer, and affidavit — with a directive that the court may not compel the government (particularly, the military and intelligence community) to produce witnesses for testimony in court. It could provide for classified intelligence to be presented to the judge ex parte, with only a non-classified summary provided to the combatant. It could require the court to give deference during wartime to the conclusion of combatant status review tribunals already conducted by the military (allowing judges to disregard those conclusions only upon a showing that the conclusion was irrational — the same standard that compels federal appeals courts, in every single civilian criminal case, to refrain from disturbing a trial court’s findings of fact).

To promote efficiency, since the issues in these cases are likely to be repetitive, Congress could also direct that all petitions be filed in the District of Columbia, with all appeals to the D.C. Circuit and, ultimately, the Supreme Court. Though I would prefer to see the cases directed to a specialized court, it is not practical to expect one could be designed in the short-term. We need a solution that can be implemented tomorrow.

It could work. But will Congress come to its senses and put this ruling where it belongs….in the trashbin?

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