Courting the Enemy

We may not know exactly where Osama bin Laden is hanging out these days, but we do know the whereabouts of Salim Ahmed Hamdan, his former body guard and driver. Ditto for Omar Khadr, who is accused of throwing a grenade that resulted in the death of a US soldier in Afghanistan in 2002. Along with Lakhdar Boumediene, an Algerian terrorist caught plying his trade in Bosnia, and about 265 other suspected terrorists, these men are being held as military prisoners at Camp Delta, located on the shores of scenic Guantanamo Bay. The rules under which they are being held, and under which they will eventually be tried, are essentially those covering prisoners of war, based on war-time precedents. Since The US military operations stemming from the 9/11 attacks (aka, The war on Terror) are much different from wars waged in the past, several major pieces of legislation were passed to ensure proper treatment of captured enemy combatants. And while this process might be moving slowly, it is important to remember that we are dealing with very dangerous individuals, especially in the face of the perpetual hand wringing of the ACLU and its disciples.

Yesterday, the Supreme Court handed down its long-awaited decision in the case of Boumediene v. Bush. In a 5-4 split, the majority opinion argued in favor of granting the Gitmo prisoners the “right” to a hearing in federal court as to the legality of their imprisonment. In other words, they are giving them the right of habeas corpus – the right to a court challenge to their detention by the US Government.

Some lawyers, especially those concerned with the preservation of civil liberties issues above all else, have been busy trying to make sure that the “rights” of the Gitmo prisoners are upheld. We are used to hearing these kinds of arguments in the context of domestic law, but this is an effort at providing the rights of American citizens to individuals with extremely shaky legal standing. Not only are they non-Americans, but they were captured, for the most part, during combat with American troops.


In his majority opinion, Justice Anthony Kennedy emphasizes the importance of preserving the rights granted under our constitution, especially habeas corpus. So far, so good. But then he argues that these rights be extended to our enemies. Joining Kennedy in his opinion were Justices Breyer, Ginsburg, Souter and Stevens, collectively known as the liberal wing of the court. Writing in dissent, Justice Scalia points out the added burden that this decision places on the effort to protect Americans from terrorists. Scalia was joined in the minority by Justices Thomas, Roberts and Alito.

Also at stake here is the court’s impingement on the powers of the Executive Branch. For a good analysis of this issue, see the Wall Street Journal Editorial in today’s newspaper. Its title, President Kennedy, provides a foretaste of the Journal’s view on Kennedy’s over-reaching opinions.

While it seems unlikely that such a reminder is needed, this decision provides a dramatic reminder that the next president is expected to name a number of new Justices during his years in office, thereby shaping the court's decisions for years to come. The decision in Boumediene v. Bush is a stark example of what is at stake.
Recently, a California Court effectively legalized gay marriage over the objection of the state’s voters. This gave those of us from Massachusetts a déjà vu moment as we recalled a similar action by the Massachusetts Supreme Court. The far-reaching effects of decisions handed down by activist judges impact heavily on the fabric of American life. But the fact that these directives come from appointed judges, often serving lifetime tenure, helps allow those judges to avoid full accountability and often minimizes the recourse available.