The Inmates Are Running The Asylum

The Supreme Court last week made one of the worst decisions in its long history.  The sad part is that Americans will almost certainly be harmed as the result of this ruling.

The short version: terrorists now have the same rights in American courts as you and me.

What has this nation come to?  If the year were 1950, this ruling would essentially be giving Nazis the rights and protections of American citizens.  I kid you not.

This ruling was, in some ways, not unexpected.  Michelle Malkin writes:

I'm reminded of what one DHS source pointed out to me when the high court ruled in favor of habeas corpus rights four years ago: "Hmm, now that the Gitmo detainees are entitled to habeas challenges and hearings by American courts and American judges, I wonder how long before they and their lawyers claim that they are entitled to asylum hearings as well?"

Won't be long now!

Mark Levin is an excellent voice for conservatives, with several best-selling books and a syndicated radio program.  He's also a lawyer (but don't hold that against him - he uses his powers for good, not evil).  Visit his website to listen to his program last week where he goes through the precedent of the Court's history leading up to this horrendous decision, as well as the details of what this Court has ignored in their effort to re-write the Constitution as they see fit.  The short version is that they have ignored every scrap of legal precedent, historical precedent, security consideration, and the Constitution itself in this decision.

Levin's first thoughts, posted shortly after the decision last week, included the following:

While I am still reviewing the 5-4 decision written by Anthony Kennedy, apparently giving GITMO detainees access to our civilian courts, at the outset I am left to wonder whether all POWs will now have access to our civilian courts? After all, you would think lawful enemy combatants have a better claim in this regard than unlawful enemy combatants. And if POWs have access to our civilian courts, how do our courts plan to handle the thousands, if not tens of thousands of cases, that will be brought to them in future conflicts?

It has been the objective of the left-wing bar to fight aspects of this war in our courtrooms, where it knew it would have a decent chance at victory. So complete is the Court's disregard for the Constitution and even its own precedent now that anything is possible. And what was once considered inconceivable is now compelled by the Constitution, or so five justices have ruled. I fear for my country. I really do. And AP, among others, reports this story as a defeat for "the Bush administration." Really? I see it as a defeat for the nation.

I'd like to take a moment to mention the lawyers and law firms that defend these pieces of human garbage.  What is wrong with the ACLU and the others?  Why are they fighting to introduce rights -- which are not legally granted -- to these murderers who seek only the literal destruction of America?  I believe the ACLU is one of the most dangerous organizations in our country, and this is precisely why.

Furthermore, don't forget unintended consequences.  I can think of three right off.  First, American soldiers will be in greater danger than ever before.  If these terrorists know they can sue their way out of prison if they are captured, they'll be more likely to attack recklessly, not worried about being put to justice.  When a 20-year old soldier is in the middle of a firefight for his life, do you really think he's going to stop and think about obtaining evidence that can be used in court?  Insanity!  Second, the terrorists themselves -- who the ACLU seems to find so precious -- will almost certainly face greater danger, because if our soldiers know there's no point in capturing them, they'll just go for the kill.  I would, if I were in that situation.  Third, you and I are in greater danger as a direct result of this decision.  If the terrorists know that they can sue their way to freedom, what's their incentive to give up critical information regarding future attacks?  It's gone.  Our interrogations have already stopped dozens of attacks since 9/11, and there's no reason to think they wouldn't continue to provide valuable information that would protect American lives.  And, if these terrorists are released from American courts, where are they being released?  On American soil.  Is anyone else seeing the mind-boggling stupidity of this decision yet?

Some other analysis includes a Debra Burlingame's earlier investigation into those leading the charge to close down Gitmo.  It all boils down to following the money.  Some of the big-name law firms defending these terrorists are receiving large sums of money from unknown sources.

Also, in an interview with Hugh Hewitt, Senator Jon Kyl of Arizona had the following words to say (emphasis mine):

[T]he irony here is the Court has given us a little bit, us meaning Congress, some direction. They basically challenged us to write the procedures for dealing with these detainees. We did. And then a case came along, and they said we don't think you have it exactly right. So we went back and we made revisions. And they are, by the description of the dissenters, the most generous set of procedural protections ever afforded aliens detained by any country as enemy combatants. And yet, the Court, after inviting us to develop these procedures, and they are the most generous ever, anywhere, now strikes them down as inadequate. And as Justice Roberts said, it's really hard to figure out why they're inadequate based upon the test that the majority created.

Assistant to the President and Deputy Chief of Staff Joel Kaplan had this to say to Hewitt (emphasis mine):

There's going to be literally hundreds of lawsuits brought in potentially district courts all over the country. And the Court made clear that the remedy that these district courts need to be able to apply is to release the detainees. I mean, imagine, imagine what the effect of that will be – individual district court judges around the country are going to get to decide that some member of al Qaeda, who today is safely imprisoned on Guantanamo Bay, can be released. It's just a stunning, stunning decision by five justices of the Supreme Court. 

There are two branches, two elected, accountable branches, the Congress and the executive, who have these responsibilities of national security. And not only do they have the responsibilities, they have the authorities, they have the tools, they have the information necessary to protect the American people. And the Court admits that it doesn't have it, but nonetheless, usurps that authority for itself. It's just a terrible display of judicial activism, and one with real consequences for the safety and security of the American people.

Hewitt writes his own column about the decision that is worth reprinting in full:

Thursday's 5-4 decision awarding "unlawful combatants" at Gitmo --terrorists-- the "privilege of the writ of habeas corpus" has left
millions of Americans stunned.  What in the world is the majority of the Supreme Court thinking?  Justice Scalia, writing in dissent,
was blunt:

America is at war with radical Islamists. The enemy began by killing Americans and American allies 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 in Yemen. See National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, pp. 60–61, 70, 190 (2004). 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 in Washington, D. C., and 40 in Pennsylvania. See id., at 552, n. 9. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed. The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

These are harsh words, unusually so even for ordinary debate, but amazingly so among the nine.  Justice Scalia is quite obviously as frustrated with his aging colleagues as are the vast majority of Americans.  There's a war going on.  These terrorists and their still-at-large allies are trying to kill us.  The president and the Congress, including many Democrats, took the blueprint the Court delivered the last time it addressed the matter and passed a statute specifically tailored to the demands the Court's five justices laid out.  Now that Supreme Court-mandated approach has been struck down, and the "great writ" is open to the worst killers who have ever set their sights on the homeland.

What this means, of course, is more litigation, more delays, and more confusion.  Only one thing is certain: Our terrorist enemies still at large must be amazed, amused and encouraged by the continued insistence by legal elites that they be treated like petty American criminals rather than fanatical killers eager for martyrdom.  It is as though the five justices and their clerks are wholly ignorant of the rising stack of books and flood of articles detailing the nature of the enemy and their creed of death.

What is more alarming than the prospect of ignorance on the part of the majority is their collective seduction by hard left elites, particularly those in the Academy.  Supreme Court justices don't get out much.  When they do it is typically to the nation's law schools and to judicial and ABA conferences, where they are no doubt surrounded by thousands of elites who have as much experience with the war as the justices, but are perhaps even less well read on the nature of Willful Blindness, A Memoir of the jihadists' ideology and tactics.  Andrew McCarthy's brilliant new book, Jihad, recounts how unprepared the American legal system was for the assault by the fanatics when it first crashed into the World trade center in 1993 and how even after 9/11 it could not adjust to cope with the war in which we are engulfed.  Obviously the highest rank of our legal elite have not yet come to grip with the nature of the enemy.

We have to pray that Justice Scalia is wrong though common sense tells us he is right.  The majority's indulgence of the killers' demand to be treated as ordinary Americans or as aliens journeying through our land is as astonishing as it is dangerous.  By asserting its preeminence over the combination of the president and the Congress, Justice Kennedy and his colleagues have certainly proven they are not at the top of the least dangerous branch.  Far from it, in fact.  The dangers the majority subject us to are all too apparent.

Finally, let's finish with the dissents of Chief Justice Roberts and Justice Antonin Scalia.  Excerpts from Roberts:

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law's operation. And to what effect? The majority merely replaces a review system designed by the people's representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority's ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.

It is grossly premature to pronounce on the detainees' right to habeas without first assessing whether the remedies the DTA system provides vindicate whatever rights petitioners may claim.

Simply put, the Court's opinion fails on its own terms. The majority strikes down the statute because it is not an "adequate substitute" for habeas review, but fails to show what rights the detainees have that cannot be vindicated by the DTA system.

The only issue in dispute is the process the Guantanamo prisoners are entitled to use to test the legality of their detention. Hamdi concluded that American citizens detained as enemy combatants are entitled to only limited process, and that much of that process could be supplied by a military tribunal, with review to follow in an Article III court. That is precisely the system we have here. It is adequate to vindicate whatever due process rights petitioners may have.

The Court today invents a sort of reverse facial challenge and applies it with gusto: If there is any scenario in which the statute might be constitutionally infirm, the law must be struck down.

[In the majority's view,] any interpretation of the statute that would make it an adequate substitute for habeas must be rejected, because Congress could not possibly have intended to enact an adequate substitute for habeas. The Court could have saved itself a lot of trouble if it had simply announced this Catch-22 approach at the beginning rather than the end of its opinion.

So who has won? Not the detainees. The Court's analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to "determine—through democratic means—how best" to balance the security of the American people with the detainees' liberty interests, has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation's foreign policy to unelected, politically unaccountable judges.

Excerpts from Scalia:

Today, for the first time in our Nation's history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war…. The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court's intervention in this military matter is entirely ultra vires.

The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court's blatant abandonment of such a principle that produces the decision today.  The President relied on our settled precedent in Johnson v. Eisentrager (1950), when he established the prison at Guantanamo Bay for enemy aliens.

[I]n response [to the Court's 2006 ruling in Hamdan v. Rumsfeld], Congress, at the President's request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive—both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting….  What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today's opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails. 

What drives today's decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy. The Court says that if the extraterritorial applicability of the Suspension Clause turned on formal notions of sovereignty, "it would be possible for the political branches to govern without legal constraint" in areas beyond the sovereign territory of the United States.  That cannot be, the Court says, because it is the duty of this Court to say what the law is. It would be difficult to imagine a more question-begging analysis.… Our power "to say what the law is" is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. And that is precisely the question in these cases: whether the Constitution confers habeas jurisdiction on federal courts to decide petitioners' claims. It is both irrational and arrogant to say that the answer must be yes, because otherwise we would not be supreme.

Putting aside the conclusive precedent of Eisentrager, it is clear that the original understanding of the Suspension Clause was that habeas corpus was not available to aliens abroad, as Judge Randolph's thorough opinion for the court below detailed.…  It is entirely clear that, at English common law, the writ of habeas corpus did not extend beyond the sovereign territory of the Crown. 

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable "functional" test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson's opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.  The Nation will live to regret what the Court has done today.

So, what we have here is the worst example of judicial tyranny imaginable.  The people being held at Gitmo are terrorists who have been captured on the battlefield trying to kill American soldiers.  They have not adhered to Geneva Convention rules (wearing a uniform, etc.), therefore they are not legally entitled to Geneva Convention protections.  They are not American citizens, so they are not legally entitled to the protections of the U.S. Constitution.  They are not being held on American soil, so they do not have the protections of legal due process.  The Supreme Court demanded Congress address this specific situation, and they did.

And yet, the Supreme Court -- or, more specifically, the five liberal, activist judges on the Supreme Court -- disregarded all of these facts, putting their own agenda ahead of hundreds of years of legal precedent, putting their own agenda ahead of the safety and security of Americans, giving the most evil, murderous bastards ever to walk the face of the planet the very same rights as you and me.

As Hewitt's article explained, the dissenters used language that could be considered highly controversial, certainly out of the ordinary for an internal disagreement on the Supreme Court.  They clearly understand the impact this decision is going to have on our legal system and our safety; just as clearly, the activist majority is blindingly oblivious.

And we, as American citizens, are going to pay the cost for their selfish activism.

There's my two cents.