Posted by
Chris Field on Friday, June 13, 2008 2:53:02 PM
The Supreme Court's
Boumediene decision yesterday granting constitutional rights to non-citizens (specifically foreign terrorists) and ignoring the constitutional provision allowing the suspension of habeas corpus is, of course, the subject of many an editorial in today's broadsheets.
Let's take a look at two editorials on the decision that could not be more different.
First, there's the New York Times editorial "
Justice 5, Brutality 4," the title of which shows their unserious thought processes that would conclude that 4 Supreme Court justices are pro-brutality -- as though those four would have prescribed that the terrorists caught fighting our forces in the Middle East (note that the were caught, not killed -- what happens now, with this new ruling?) should be placed in an iron maiden, flogged and forced to undergo full-body-cavity searches three times a day. Remember, we're talking about Guantanamo Bay, a place
noted for, if anything,
treating the prisoners better than the troops guarding them.
Here's the Times' final paragraphs, praising the fact that the liberals on the court had the incredible insight to grant rights to
foreign terrorists (the same terrorists who would like to kill our constitutionally protected
American rights):
Now, by a 5-to-4 vote, the court has affirmed the detainees’ habeas
rights. The majority, in an opinion by Justice Anthony Kennedy, ruled
that the Military Commissions Act violates the Suspension Clause, by
eliminating habeas corpus although the requirements of the Constitution
— invasion or rebellion — do not exist.
The court ruled that the
military tribunals that are hearing the detainees’ cases — the
administration’s weak alternative to habeas proceedings in a federal
court — are not an adequate substitute. The hearings cut back on basic
due process protections, like the right to counsel and the right to
present evidence of innocence.
It was disturbing that four
justices dissented from this eminently reasonable decision. The lead
dissent, by Chief Justice John Roberts, dismisses habeas as “most
fundamentally a procedural right.” Chief Justice Roberts thinks the
detainees receive such “generous” protections at their hearings that
the majority should not have worried about whether they had habeas
rights.
There is an enormous gulf between the substance and tone
of the majority opinion, with its rich appreciation of the liberties
that the founders wrote into the Constitution, and the
what-is-all-the-fuss-about dissent. It is sobering to think that habeas
hangs by a single vote in the Supreme Court of the United States — a
reminder that the composition of the court could depend on the outcome
of this year’s presidential election. The ruling is a major victory for
civil liberties — but a timely reminder of how fragile they are.
Now, let's take a look at a refreshing, honest, intelligent, reasoned editorial from the Wall Street Journal (don't sound too biased, do I?).
In it's lead editorial today, "President Kennedy," the Journal points out Kennedy's (and the four left-wing SCOTUS justices who sided with him) declaration that the court knows better how to fight a war against radical Islam than the commander in chief or the Congress that has repeated supported his efforts.
Supreme Court Justice Anthony Kennedy isn't known for his judicial
modesty. But for sheer willfulness, yesterday's 5-4 majority opinion in
Boumediene v. Bush may earn him a historic place among the likes
of Harry Blackmun. In a stroke, he and four other unelected Justices
have declared their war-making supremacy over both Congress and the
White House.
Boumediene concerns habeas corpus – the right of Americans to
challenge detention by the government. Justice Kennedy has now extended
that right to non-American enemy combatants captured abroad trying to
kill Americans in the war on terror. We can say with confident horror
that more Americans are likely to die as a result.
The left is thankful that the court has granted this right to foreigners. Which prompts the question: Why didn't the Framers put it in there? The Journal answers:
Article I, Section 9 of the Constitution contains the so-called
Suspension Clause, which says: "The privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it." Justice Kennedy makes much
of the fact that we are not currently under "invasion or rebellion."
But he ignores that these exceptions don't include war abroad because
the Framers never contemplated that a non-citizen, captured overseas
and held outside the U.S., could claim the same right.
But the poor terrorists are on American-controlled territory. But that wasn't the case in WWII.
To reach yesterday's decision, Justice Kennedy also had to dissemble about Justice Robert Jackson's famous 1950 decision in Johnson v. Eisentrager.
In that case, German nationals had been tried and convicted by military
commissions for providing aid to the Japanese after Germany's surrender
in World War II. Justice Jackson ruled that non-Americans held in a
prison in the American occupation zone in Germany did not warrant
habeas corpus. But rather than overrule Eisentrager, Mr. Kennedy misinterprets it to pretend that it was based on mere "procedural" concerns. This is plainly dishonest.
Aren't you comforted to know that we have 5 Supreme Court justices who can run the country, conduct war, declare policy and rewrite the Constitution for us when we are so totally unaware of our own lacking? I know I'm breathing a sigh of relief.