Battlefield 'Habeas Corpus'
Here's my advice to our troops in harm's way based on the U.S. Supreme Court's reprehensible ruling June 12, which forces the military to treat enemy fighters captured in combat as if they were caught insider trading on Wall Street.
In Boumedine v. Bush and Al Odah v. United States, a 5-4 Court majority declared that illegal enemy jihadists you captured outside
The decision is based on a legal principle called habeas corpus, which means “you have the body.” Here's my battlefield version: “Don't doubt—take them out!” Give 'em a box instead of a brief.”
Thanks to five “unelected politically unaccountable judges,” as Chief Justice Roberts put it, you can no longer afford to spare their lives unless you want to:
-
Mirandize maniacs in Arabic, Farsi, Farsi Dari, Pashto, Dumari, Gurani, etc., etc., etc.
Gather evidence while ducking snipers and dodging roadside bombs and suicide bombers
Write detailed crime reports when you could be writing letters to your loved ones
Leave your brothers behind on the battlefield so you can appear in countless court hearings
Be deposed by ACLU types who don't know war from Warhol
Endure cross-examination by hostile lawyers who don't know an M-16 from an MP3
Be slandered by nitwit media ingrates willing to diss
Maybe you could tie a yellow ribbon 'round a different box, and Fed-ex your captured enemies to the five judges who've made your job a whole lot tougher, longer and more dangerous: Anthony Kennedy, John Paul Stevens, Stephen Breyer, David Souter and Ruth Bader Ginsburg.
They don't like us caging these animals in Gitmo, which is a whole lot homier than the hell holes they came from. So tuck in a note urging the five to take them home for care and feeding. These judges probably don't have any guns in the house, but do remind them to dispose of knives, avoid sleeping, and hire a food taster.
Let me put in non-legalese what the Court majority did: They made it up.
They're using their “living and breathing” Constitution to squeeze the life out of your ability to win this war. The “liberty and security” they profess to protect will be buried with us and the Constitution. Here's their rationale, not to be confused with rational:
The laws and Constitution are designed to survive, and remain in force, in extraordinary times.
After admitting there's no case in the history of our Constitution or the English Common Law that supports giving habeas rights to aliens on foreign soil, the five invented an undefined “functional” test for deciding whether constitutional rights should be given extraterritorial application.
They pretend they didn't overrule their 58-year precedent in Johnson v. Eisentrager, which held that habeas jurisdiction didn't extend to Germans being held in an American military prison located in post-war
The laws at issue in Boumedine and Al Odah were enacted after the President and Congress worked diligently to correct problems with prior law, which the Court had faulted in two prior cases. After refusing last year to hear the same appeal by the same detainees challenging the new law, the Court has now declared it unconstitutional on its face, even though the detainees never took advantage of the rights provided. Chief Justice John Roberts condemned that in his fervent dissent:
Remarkably, this Court does not require petitioners to exhaust their remedies under the statute; it does not wait to see whether those remedies will prove sufficient to protect petitioners' rights.
This statutory scheme provides the combatants held at
Justice Antonin Scalia was scathing in his dissent:
At least 30 of those prisoners hitherto released from
During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators to the “Blind Sheik's” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks.
The Nation will live to regret what the Court has done today.
Only God and you can save us from the consequences of this dishonorable Court ruling. If you decide to start executing justice on the battlefield, you won't get any grief from the millions of us who support you.
Jan LaRue is a member of the Culture and Media Institute's Board of Advisors.
