Posted on 06/23/2008 6:22:26 AM PDT by SE Mom
As I pointed out last week, and as legal scholar John Yoo did earlier this week in The Wall Street Journal, the “Boumediene Five” have done our nation and our Constitution no great service. But beyond the rhetoric, we really need to understand the real world impact of this ruling on the war we are waging against our enemies.
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Look, this issue isn’t going to go away, so consider these things the next time you hear someone defend the Supreme Court’s majority opinion as an attempt at “basic fairness” and to help prevent an innocent sheepherder from being improperly detained:
First, the Court left total confusion and uncertainty as to what rights these habeas petitions will vindicate. What will be the nature of the review under these new habeas rights? Will the Court review the constitutionality of the detention hearing procedures? What will be the burden of proof in these new proceedings? Will they have a factual hearing in order to try to recreate the circumstances in the field at the time of the detainee’s apprehension?
The answer is no one knows. It will all be dumped into the laps of some federal district judge and his or her law clerks. These are unprecedented circumstances and there is no way to predict what some judge might see as his or her new mandate under the constitution.
Again, it will be a federal judge - not the President or the Congress or a military tribunal - who will decide the appropriate extent to which the detainee will have access to classified military information, as just one of the more troubling examples. In other words, the branch of our government least qualified to make determinations on national security and foreign policy will now do just that. One other thing is certain. Whatever comes out of this new habeas corpus mish mash will generate a new round of appeals and our avowed enemies will work their way deeper and deeper into our court system.
Second, the majority opinion throws into question whether the tens of thousands of detainees in Iraq and the more than 1000 in Afghanistan are now entitled to habeas. Is the Court going to extend habeas protection to all foreign detainees held in foreign territory over which the United States is not sovereign, but has de facto control? We could be looking at tens of thousands of military detainee habeas cases in federal court.
Third, the Court’s decision encourages al Qaeda to continue in violation of the Geneva Conventions. The Geneva Conventions are designed to protect civilians and to reward combatants with certain protections if they abide by the Conventions. Al Qaeda specifically targets civilians and wears no uniform to distinguish themselves from the civilian population. Our policy now is to give al Qaeda combatants privileges that exceed the Conventions in terms of access to our court system without requiring al Qaeda to abide by these conventions themselves. This, of course, is an incentive for them to violate the law of war. They receive no penalty for not doing so, and by not wearing uniforms, makes any standard of proof requirement with regard to enemy combatant status more difficult for the United States. We are literally giving the enemy the means by which they can do us great harm.
Unfortunately it is not uncommon for a majority of the Supreme Court to make new law based not upon precedent but upon policy preferences of members of the Court. But this time it’s part of a much bigger picture. It is about power, and who gets to exercise it in an area that is vital to the security of this nation. This time it’s not only wrong, it’s dangerous.
It should also be noted that Senator Obama thinks that the decision in Boumediene v Bush is an excellent one. I don’t know what’s worse: that he doesn’t understand what the Court has done … or that he actually does and still thinks this was a sound ruling. Good luck to all of us.
It should also be noted that Senator Obama thinks that the decision in Boumediene v Bush is an excellent one. I don’t know what’s worse: that he doesn’t understand what the Court has done … or that he actually does and still thinks this was a sound ruling. Good luck to all of us.
Fred
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> Our policy now is to give al Qaeda combatants privileges that exceed the Conventions in terms of access to our court system without requiring al Qaeda to abide by these conventions themselves.
But is it not true that America is not a signatory to the relevant Geneva Convention protocols that deal to non-combatants? Isn’t that part of the issue here?
(specifically Articles 43-47?)
Or do I have it wrong?
I figured out that Barry was a zero as a lawyer when he could not answer the capital gains tax question during the ABC debates. He couldn't hack it in a law firm in Chicago, so he became a “community activist”. In short, he found his own level in a politically radical, do nothing job.
p.s Only Harvard Law Review editor to NEVER publish anything. My dog knows more about the law than Barry does.
>>>>Good luck to all of us.
We’re well beyond luck or even Divine Providence.
The highest court in the land has ruled that unlawful combatants - which includes all terrorist groups - now have a higher level of judicial protection than do legitimate combatants under the Geneva Conventions.
Endgame. America is hosed.
“Third, the Court’s decision encourages al Qaeda to continue in violation of the Geneva Conventions.”
I hadn’t even considered this angle.
If I recall correctly, you are right. The section of the conventions dealing with non-combatants was voted down...and not just by America, but by the entire body by majority decision.
..........Again, it will be a federal judge............
And as these prisoners are not within a US District, the scumbag lawyers will be able to shop for judges/districts that are most sympathic to “feeling the prisioners pain”!
> The highest court in the land has ruled that unlawful combatants - which includes all terrorist groups - now have a higher level of judicial protection than do legitimate combatants under the Geneva Conventions.
Wow. Surely this is bad Law? What a nonsensical outcome. It cannot be allowed to stand as it is!
The logical extension to this is twofold: first, countries at war with the US would be fools to have anything other than unlawful combatants. And the US, in response, would be fools to take any prisoners at all.
This is the Laws of War gone mad.
obama is either incredibly dumb or he is taking advantage of the dumb americans who haven’t a clue what he’s talking about.
Doesn’t really matter what the Suprme Court rules, they have no way of enforcing it.
Someone with huevos would tell them so.
Once again, I nominate Fred Thompson to the United States Supreme Court.
Take a look at the Milken case, and your hair will curl. He made up laws and sold them to grand juries as real, just to get something on Milken—who had done nothing illegal or wrong.
But as a mayor, Rudy was without peer. Rudy for Mayor of D.C.!
I don’t have a problem with detainees having habeus, but we already had a system of military tribunals in place that provided that...at the behest of the SC no less, who has now turned around and said their own recommendation isn’t good enough!
So they put them in our justice system. Now we’re screwed.
He came off as preoccupied, distant and lackadaisical because that’s what the MSM force-fed everyone. If he had the intellectual jets and the philosophicl leanings to be good why did he need to get up and do a song and dance routine to get votes? I always believed conservatives were smart and able to see through media manipulation but in the case of Fred’s campaign the leftist media played us like a violin.
Agreed 100 percent.
Every Gitmo detainee - and we can assume that 80 percent or more really are bad guys and jihadis - now gets a habeus corpus hearing in a U.S. DOMESTIC court.
Andrew Jackson did so - here's his quote:
"John Marshall has made his decision, now let him enforce it!"
(On a Supreme Court decision that a Georgia law prohibiting white men from entering Indian territory after 1 March 1831 was unconstitutional. Quoted in The American Conflict by Horace Greeley (1873), p. 106; also in The Life of Andrew Jackson (2001) by Robert Vincent Remini)
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