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A Supreme Mess by J. F. Kelly, Jr. 7/11/08

Most of the conservative columnists and radio talk show hosts have, by now, expressed their anger and exasperation over the U.S. Supreme Court’s Boumediene v. Bush 5-4 decision to apply habeas corpus protections to foreign civilian terrorists captured by the U.S. military. Unanswered, however, are the troubling questions raised by the decision. Strangely, I find a dearth of commentaries celebrating the ruling although it seems to me that it provides pretty much what the liberal media and critics of “Bush’s war” have been demanding ever since Abu Ghraib and Guantanamo became catchwords for their cause. Perhaps it’s because, on sober second thought, there really isn’t much to celebrate, certainly not with regard to the safety of Americans.

Aside from a few salutes to a “victory for civil rights”, there hasn’t been much rejoicing except perhaps among the detainees at Guantanamo Bay and wherever else Islamic jihadists are gathered. Could it be that those who argued so passionately for the civil rights of murderous religious fanatics, who tell their captors that they wish to be martyrs and will kill Americans again if given the chance, are now beginning to worry about what will become of them if the detention facility at Guantanamo is actually closed?

We all do well to worry, because if it is, the detainees may be coming soon to a military base near you. What else to do with them while they await their day in civilian court? And if acquitted or when they have served their sentences, what then? Shall they be released or paroled here while their residency or deportation status is considered? And regarding the latter, what if their country of origin won’t take them back? Make no mistake about it. Many will be released if the government decides that civilian trials and civilian rules of evidence risk compromising sensitive security information, the release of which could harm U.S. interests or endanger Americans.

As Justice Antonin Scalia wrote in his dissent, Americans will die because of this ruling. On the other hand, so may terrorists. A Wall Street Journal editorial put it rather starkly: “Justice Kennedy will not want to hear this, but some enemy terrorists will be shot rather than captured. Most who are captured will be interrogated for a brief time and released. Some will be set free entirely, while others will be handed over to the tender mercies of our allies on the ground in Iraq or Afghanistan.” The Supreme Court decision may have revived the old slogan, “Take no prisoners.”

I’m confident that American soldiers will attempt to do the right thing even under the danger, stress, fear and fog of combat but the Supreme Court certainly made it tempting to ask whether fanatics who wish to die while killing Americans are actually worth the bother and the danger of being taken captive, especially if soldierly duties now involve establishing a crime scene and collecting, preserving and accounting for evidence to be used against prisoners (or suspects or detainees or whatever the politically preferred term is now). Should American soldiers’ lives really be put at risk to do that, even while they are dodging bullets and trying to avoid bombs?

The Boumediene decision requires that we rewrite the rules of war but provides little help as to how we are to so safely. It extends the rules of our civilian criminal justice system to the battlefields, a place that justices know little about. Having rendered this horrendous ruling, the justices then hung up their robes and went on vacation where at least they will do no further harm for awhile.

This is no way to fight a war. But then I forget; this is not a real war. In real wars, the country unites behind a president as commander-in-chief. In real wars, those opposed to the president’s policies put differences aside once the troops are committed. They don’t say that they support the troops but oppose their mission, or other such nonsense. In a real war, the politicians don’t put their political agenda ahead of national unity. In a real war, the legislative and judicial branches tread with great caution and restraint upon the commander-in-chief’s authority to conduct war and safeguard Americans. In real wars, it matters less how you play the game than whether or not you win.

Surely, the founding fathers never intended that the benefits and safeguards of the American criminal justice system be extended to foreign suicidal terrorists dedicated to killing Americans in the name of their God. If you are concerned regarding the likely consequences of this ruling, remember that the next president will probably have the opportunity to fill vacancies on the Supreme Court. Do you want nominees in the mold of Alito, Roberts, Scalia and Thomas who put the safety of Americans ahead of the civil rights of terrorists? Or do you want more justices like Breyer, Ginsberg, Souter and Stevens? CRO

copyright 2008 J. F. Kelly, Jr.

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