If you don't know what I'm talking about, I'm refering to Boumediene v. Bush, yesterday's apalling Supreme Court decision. Yesterday, the Supreme Court changed literally hundreds of years of established law by extending the right of habeas corpus to enemy soldiers captured by our military in foreign theaters of war. Habeas corpus, sometimes called the great writ, is a legendary legal right that we inherited from English law that allows a prisoner to challenge his detention in a civilian court. So if you're arrested, you can apply for a writ of habeas corpus, and the government will have adequately show that they have lawfully detained you. If they fail to do so, the court will order your release. This right was always extended to the far reaches of wherever this nation may have jurisdiction, but no further. Yesterday, the Supreme Court changed that and opened our civilian courts to detainees in the prison in Guantanamo Bay, in the sovereign nation of Cuba. If you want to fully understand why this is so horrible, you need to read Chief Justice Roberts' and Justice Scalia's dissents to the case, but I'll do my best to lay everything out for you.
For decades our Supreme Court's case law always said that during war, lawful enemy combatants are held as P.O.W.'s, while unlawful enemy combatants (like our current enemy which fights in plain clothes) are subject to military tribunal. Yesterday our Supreme Court changed that. This is how enemy combatants were always dealt with in a foreign theater, because, oh I don't know, it was logical. This is how wars are fought. The U.S. is not unique in this way. Did the Nazis get habeas corpus? If you don't know the answer to that question, I'll answer it for you. The answer is no. Until yesterday, habeas corpus had never been interpreted to extend beyond a nation's jurisdictional territory. This was the case 2 days ago, and this was the case when our founders formally adopted the great writ from the English common law.
One of the main reasons President Bush set up the prison at Guantanamo is because the Solicitor General advised him, based on the case law, that he could keep the unlawful enemy combatants there and try them in military tribunals if need be. He would not have set up this prison if he thought they would have civilian courts opened to them. Otherwise he would have made a temporary prison in Iraq or asked our allies to help with them. And now that is what is most likely to happen. This is a military base in Cuba. I don't care what you think the law ought to be, but the legal fact is, the Constitution as a legal document does not extend beyond wherever the United States may have jurisdiction. Now our Supreme Court says it does. The other thing you may not realize here is, the Supreme Court shouldn't even have gotten to the habeas issue. You don't get to habeas if the case can be decided on other grounds, particularly if due process is already being provided. Habeas corpus is a last ditch resort you get when the executive has violated your right to due process or other Constitutional rights. It's the court's final ability to check the corrupt military or police officer. These detainees were already getting ample due process. The Supreme Court itself outlined what that process ought to be in cases such as Hamdi v. Rumsfeld and Hamdan v. Rumsfeld. And Congress modified federal statutes at least twice to comply with these decisions. Quoting from Roberts' dissent, this is the process the Court had previously given these enemy combatants:
"The right to hear the bases of the charges against them, including a summary of any classified evidence.
The ability to challenge the bases of their detention before military tribunals modeled after Geneva Convention procedures. Some 38 detainees have been released as a result of this process.
The right, before the CSRT, to testify, introduce evidence, call witnesses, question those the Government calls, and secure release, if and when appropriate.
The right to the aid of a personal representative in arranging and presenting their cases before a CSRT.
Before the D. C. Circuit, the right to employ counsel, challenge the factual record, contest the lower tribunal’s legal determinations, ensure compliance with the Constitution and laws, and secure release, if any errors below establish their entitlement to such relief."
Keep in mind, Congress made this process available to enemy combatants at the direction of the Supreme Court. And they changed their mind again.
The sad irony is, the process the detainees will now get in federal civilian courts is likely to be far worse than what they were getting before. Our civilian courts are not equipped for these types of hearings and trials. How do they know if the military lawfully detained a combatant? They know about warrants, probable cause, and Miranda rights. They know nothing about U.S. military capturing terrorists in Iraq and Afghanistan. And even if they did, are they supposed to call in witnesses? What's a soldier going to say on the stand? We arbitrarily detained that guy? No! They're gonna say he had a bomb strapped to him, he had a trunk full of guns. It's ludicrous.
These people were detained in a foreign land, in the theater of war, in violation of the law of war, by our military. And they get access to our civilian courts just because they were brought to a prison that could only be considered within jurisdictional reach by some abstract technicality? --access to civilian courts that our own military personnel would not get. I cry outrageous! And if you're living in the real world, that's the only appropriate response.
So, what does this have to do with John McCain? McCain called this decision one of the worst in our nation's history. And he said he'd nominate justices like John Roberts. McCain understands that the role of the judicial branch is to tell us what the law is, not make up new law. That's something of fundamental importance to our system of government. If you remove that pole, the tent collapses. I don't know about you, but that's something I'd rather avoid.