February 09, 2010
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June 17, 2008

'It Will Almost Certainly Cause More Americans to Be Killed'

By Joel J. Sprayregen
The Supreme Court's 5-4 ruling last week means that terrorism detainees captured overseas have the same rights as U.S. citizens facing shoplifting trials at home.  This unprecedented expansion of habeas was not a victory, as liberal media smirked, over the President.  It was a judicial nullification of procedures carefully crafted by both elected branches of Government of procedures carefully tailored to allow review of detentions while remaining mindful of the terrorist threat.

The smallest of majorities is disregarding judicial history and pretending we live in a world where captured deadly enemies can be granted an advantage, without it affecting the likelihood of victory. I can't say it better than Justice Scalia:
“America is at war with radical Islamists.  The enemy began by killing Americans abroad:  241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole.   On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon and 10 in Pennsylvania…  It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane, to know the threat is serious… Last week, 13 of our countrymen in arms were killed.”


Scalia, the smartest justice, alone foresaw that the Special Counsel Law would lead to the embarrassment of the Clinton impeachment proceedings.   In his dissent last Friday, he addressed a far more serious issue: 

Congress Establishes Procedures; the Court Defines the Military’s Mission

In its 2004 Hamdi decision, the Court invited Congress to establish procedures for detainees.  Laws, including the 2005 Detainee Treatment Act (DTA), provide hearings on legality of detention before a Combatant Status Review Tribunal (CSRT), followed by review in the U.S. Court of Appeals for the District of Columbia.   A bi-partisan Congress (by 65 to 34 in the Senate) mandated that the 270 Guantanamo detainees are not free to avoid these procedures by filing habeas petitions in whatever federal district court they choose.   Centralizing court review of life-and-death cases to achieve consistency of rulings in one Appeals Court -- rather than letting leftist lawyers seek out friendly habeas judges in 50 states before a CSRT could review the evidence -- was the heart of the law.

The Court invalidated the law because it found

"…no credible arguments that the military mission would be compromised if habeas courts had jurisdiction to hear detainees' claims." 

It is difficult to fault Scalia's riposte: 

"What competence does the Court have to second-guess the judgment of Congress and President on such a point?"

Scalia detailed how prisoners released from Guantanamo -- because they were not considered combatants -- had returned to murder Americans and our allies. Scalia is foreseeably correct in concluding that the decision "will almost certainly cause more Americans to be killed." 

The Court is basing its decision -- disregarding two centuries of decisions holding that habeas is unavailable to aliens captured abroad -- on the fact  that Gitmo is "functionally" under U.S. control.  But so are U.S. bases in Afghanistan and Iraq. 

Terrorists captured there are now invited immediately to compel our military to reveal its basis for detentions; this is the meaning of habeas.  It gets worse.  Justice Kennedy explained in invalidating the DTA -- which provides wider access to Government evidence than the Geneva Convention – that

"the detainee’s ability to rebut the Government's evidence is limited by the circumstances of his confinement and his lack of counsel at this stage." 

If you do not comprehend that the ACLU and its fellow revelers are preparing petitions in blank -- on behalf of every terrorist captured overseas -- to compel the Government immediately to disclose its evidence, then you understand nothing.  

Chief Justice Roberts pointed out in his dissent what the Court is opening the door to:

"free access to classified information ignores the risk the prisoner may  convey what he learns to parties hostile to this country, with deadly consequences for those who helped apprehend the detainee." 

Roberts noted that our troops are not equipped to handle subpoenas on the battlefield.  Information given to defense lawyers in the first World Trade Towers trial on a restricted basis quickly appeared on al-Jazeera. 

The alleged shoplifter at a suburban mall is entitled to see the prosecution's file because she needs it to defend herself.  The terrorist wants his file so he can arrange to slit the throats of intelligence operatives and informants. 

Our country is doing better against terrorists than against shoplifters:  Commentators  of varied persuasions are observing that the Islamists have been deterred form launching a second terror strike against our home front.  The Court's decision undermines that result.   

Jackson’s Warning:  Don’t Convert the Bill of Rights into a Suicide Pact

The late Justice Robert H. Jackson -- who grew up in Frewsburg and lawyered in Jamestown -- exemplified the patriotic canniness found in rural New York since the days of Fort Ticonderoga.  His worldview was shaped by experience as Chief War Crimes Prosecutor at Nuremburg.  In a 1950 opinion -- tossed into the dustbin of history last week -- Jackson denied habeas to a Nazi prisoner because there had been

"no instance where a court has issued habeas corpus to an alien enemy who...has never been within its territorial jurisdiction."


Ponder Jackson's admonition in a free speech case: 

"If the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the Bill of Rights into a suicide pact."  

Joel Sprayregen was General Counsel of the Illinois ACLU until the late 1960s. Today, he dedicates his pro bono time to think tanks protecting our national security.
on "'It Will Almost Certainly Cause More Americans to Be Killed'"
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