Team Infidel
Forum Spin Doctor
Wall Street Journal
June 21, 2008
Pg. 7
By Andrew McBride
The Supreme Court's decision in Boumediene v. Bush is being hailed in many quarters as a great victory for civil rights and the rule of law. It is not. In fact, it is a watershed in judicial hubris, and in the continuing trend in our society to convert every form of decision making into a lawsuit.
For the first time in our history, the Supreme Court has rejected the considered judgment of both the Congress and the president on an issue of national security. The writ of habeas corpus, a bulwark of domestic liberty, has been extended to foreign nationals whose only connection to the U.S. is their capture by our military.
Justice Kennedy's majority opinion confuses the civilian criminal justice system and the waging of war. The Constitution as interpreted by the Supreme Court places many roadblocks in the path of a conviction for a crime, and for the loss of liberty, or even life, that may follow. The guarantee of counsel, the right to subpoena witnesses and confront adverse witnesses in open court, and the suppression of evidence gathered in violation of law, all make sense in the context of domestic law enforcement. To protect liberty, we are willing to sacrifice some efficiency in our criminal justice system. Our motto remains: Let 100 guilty men go free before one innocent man is convicted.
The situation is entirely different when the nation faces an external threat. In fighting an enemy, there is no reason for the judicial branch to "check" the political branches. The idea of our judiciary protecting the "rights" of the Nazis or the Viet Cong from executive overreaching is every bit as absurd as it sounds. But had Boumediene been decided in 1940, more than 400,000 Axis troops held in more than 500 military facilities in this country during World War II would have had a right to challenge their detention in federal court.
The judiciary is not competent to make judgments about who is or is not an enemy combatant or, more generally, a threat to the U.S. The imposition of the civilian criminal justice model on decisions regarding potentially hostile aliens raises a host of questions which the Court does not even attempt to answer in Boumediene.
Must military personnel take notes in the field regarding the location, dress, and comportment of captives for later use in the "trials" mandated by the Supreme Court? Must a chain of custody be preserved on a firearm or bomb seized from an enemy combatant? Can a detainee file a writ for habeas corpus immediately upon arriving at a U.S. military base like Guantanamo Bay?
The Boumediene majority usurps decisions that should be made by the military, but answers none of these questions. In fact, judgments regarding the detention or trial of enemies require training, experience, access to and understanding of intelligence. They cannot be reduced to a particular standard of proof in a courtroom setting. The military has made mistakes at Guantanamo, among them releasing some detainees who have returned to attack American troops in Afghanistan or Iraq. God help us if the judiciary makes such a mistake and releases the next Mohammad Atta into our midst.
Mr. McBride is a former federal prosecutor and worked in the Justice Department in the administration of President George H.W. Bush, where he was responsible for national security matters.
June 21, 2008
Pg. 7
By Andrew McBride
The Supreme Court's decision in Boumediene v. Bush is being hailed in many quarters as a great victory for civil rights and the rule of law. It is not. In fact, it is a watershed in judicial hubris, and in the continuing trend in our society to convert every form of decision making into a lawsuit.
For the first time in our history, the Supreme Court has rejected the considered judgment of both the Congress and the president on an issue of national security. The writ of habeas corpus, a bulwark of domestic liberty, has been extended to foreign nationals whose only connection to the U.S. is their capture by our military.
Justice Kennedy's majority opinion confuses the civilian criminal justice system and the waging of war. The Constitution as interpreted by the Supreme Court places many roadblocks in the path of a conviction for a crime, and for the loss of liberty, or even life, that may follow. The guarantee of counsel, the right to subpoena witnesses and confront adverse witnesses in open court, and the suppression of evidence gathered in violation of law, all make sense in the context of domestic law enforcement. To protect liberty, we are willing to sacrifice some efficiency in our criminal justice system. Our motto remains: Let 100 guilty men go free before one innocent man is convicted.
The situation is entirely different when the nation faces an external threat. In fighting an enemy, there is no reason for the judicial branch to "check" the political branches. The idea of our judiciary protecting the "rights" of the Nazis or the Viet Cong from executive overreaching is every bit as absurd as it sounds. But had Boumediene been decided in 1940, more than 400,000 Axis troops held in more than 500 military facilities in this country during World War II would have had a right to challenge their detention in federal court.
The judiciary is not competent to make judgments about who is or is not an enemy combatant or, more generally, a threat to the U.S. The imposition of the civilian criminal justice model on decisions regarding potentially hostile aliens raises a host of questions which the Court does not even attempt to answer in Boumediene.
Must military personnel take notes in the field regarding the location, dress, and comportment of captives for later use in the "trials" mandated by the Supreme Court? Must a chain of custody be preserved on a firearm or bomb seized from an enemy combatant? Can a detainee file a writ for habeas corpus immediately upon arriving at a U.S. military base like Guantanamo Bay?
The Boumediene majority usurps decisions that should be made by the military, but answers none of these questions. In fact, judgments regarding the detention or trial of enemies require training, experience, access to and understanding of intelligence. They cannot be reduced to a particular standard of proof in a courtroom setting. The military has made mistakes at Guantanamo, among them releasing some detainees who have returned to attack American troops in Afghanistan or Iraq. God help us if the judiciary makes such a mistake and releases the next Mohammad Atta into our midst.
Mr. McBride is a former federal prosecutor and worked in the Justice Department in the administration of President George H.W. Bush, where he was responsible for national security matters.