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Supreme Court v. National Security by J. F. Kelly, Jr. 6/27/08

In the aftermath of 9/11, Americans grappled with the reality of a new kind of war directed at their cities by foreign religious fanatics with no regard for their own lives or those of innocent civilians. Our leaders pledged that they would bring these criminals to justice. Their words, while well-intentioned, were the first indication that, in fact, the reality had not sunk in.

First of all, the term “criminal” suggests that the perpetrators were guilty primarily of violating our laws and should be dealt with by law enforcement personnel in accordance with our criminal justice system. But these are not merely crooks; they are terrorists sworn to our destruction and their actions amounted to acts of war to be dealt with primarily by our military services, not by policemen.

And with regard to “bringing them justice”, whose system of justice are we talking about? Surely not the one intended for U.S. citizens, legal residents and visitors subject to our jurisdiction. These are terrorists who will blow themselves up to kill innocent people who happen to be Americans. Do they deserve the benefits of our justice system which they openly mock and ridicule? Indeed, as non-uniformed civilian terrorists, they don’t even warrant protection under the Geneva Conventions provisions.

I asked these questions in a column just after 9/11. The U.S. Supreme Court just answered them. In a 5-4 decision in the case of Boumediene v. Bush, the Supremes said yes, they are entitled to these protections. Specifically, the Court ruled that the writ of habeas corpus applies to foreign terrorists captured by our military. They must then be guaranteed counsel and have the right to subpoena witnesses and to confront their accusers and adverse witnesses in open court. The rules of evidence will apply in their trials and their attorneys will have the right to move to suppress any evidence obtained in violation of our criminal laws. The government, moreover, may not be able to suppress evidence that it considers sensitive and potentially harmful to U.S. security interests.

The Court’s decision marked a new milestone in the usurpation by the unelected justices in the judicial branch of government of the powers and responsibilities of the elected president and Congress. It was warmly greeted by anti-war, anti-military activists as a tremendous victory for civil rights. Whose civil rights? Those of the terrorists, certainly, but not those of Americans who may die at the hands of those who manage to beat the system or who are released by the military rather than risk the compromise of sensitive security information during civilian trials.

The decision makes a mockery of the expression “war against terrorism.” This is not a real war, the decision implies. It is rather a law enforcement campaign, subject to the rules we see portrayed in “Law and Order, CSI”. Must our soldiers now issue Miranda warnings to all captured terrorists, or rather, suspects? Must they suspend action on the battlefield while they tape off a crime scene and wait for the crime scene investigators to arrive and collect evidence that then must be safeguarded and accounted for through a chain of custody until presented at trial?

I don’t presume to speak for the military, but if I were a soldier in combat, I would wonder at this point just what it was about war that the five learned justices and the anti-war crowd are unable to understand. To the troops under fire in combat with their lives on the line, it sure must seem like war. Can you imagine fighting WW II with the rights of Nazi and Japanese prisoners protected not only by the Geneva Conventions but by the Boumediene ruling as well? It’s difficult enough to take, secure and safeguard dangerous prisoners in combat. The Supreme Court just made it far more difficult.

Anti-war liberals who take great liberties with terms like “torture” and “degrading or humiliating treatment” and who have turned Guantanamo into a symbol of their political movement have the luxury now of celebrating their legal victory, perhaps because we have so far been spared another tragedy like 9/11, thanks in part to the incarceration by the military of dangerous terrorists. Their euphoria, however, may be short-lived. If –some say when--there is another major attack on the U.S., perhaps we’ll get serious about the meaning of war. CRO

copyright 2008 J. F. Kelly, Jr.

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