A New Declaration of Independence

National Review ^ | September 15, 2009

[Steelfish]

September 15, 2009

A New Declaration of Independence Judges don’t belong in the national-security business, so let’s get them out of it.

By Andrew C. McCarthy

It’s time for a new Declaration of Independence — a declaration of national-security independence from the U.S. court system. Without a new declaration of our determination to make democratically the life-and-death decisions that a self-governing body politic must make — a declaration of our refusal to be dictated to by unaccountable judges — catastrophe beckons.

On Saturday, the weekly Obama bad-news dump featured anonymous defense officials telling the New York Times that the administration will soon announce enhanced due-process rights for alien enemy combatants.

The combatants at issue are not those held at Guantanamo Bay but those detained at the U.S. air base in Bagram, north of Kabul. Evidently, each of the 600 combatants will be assigned a U.S. military advocate — not a lawyer — to examine his case, locate sympathetic witnesses, and sift through classified files to hunt for exculpatory evidence.

The ostensible purpose is to provide a beefed-up opportunity for these prisoners of war to seek their release, despite the facts that (a) Afghanistan is a hot combat zone in which we face a resurgent enemy actively targeting — and killing — American personnel, and (b) the prisoners have already had extraordinary due process for such a war zone, which is why, though thousands of people have been detained for some length of time on suspicion of aiding al-Qaeda and the Taliban, only 600 prisoners remain in custody.

The real purpose of this exercise is to impress the U.S. courts. A federal appeals court is about to hear the government’s challenge to an astounding ruling in Washington last spring.

Federal judge John Bates held that prisoners of war detained in Afghanistan....

[TChris]

The problem is even more basic than that! Far too many of our nation's judges are either ignorant of the law or openly activist, refusing to be constrained by it.

When such individuals are appointed to the bench, a growing erosion of good law is the only possible result.

We shouldn't NEED another Declaration of Independence! The law was already well-settled on the difference between the laws of war and criminal/civil law. Clear precedent already exists, but political and personal condiderations carried more weight in court. Those who made the relevant decisions DELIBERATELY acted outside their authority and thus showed that they cannot be trusted with their offices.

The correct answer for ANY judge on the matter would have been, "This case is dismissed without prejudice due to a lack of jurisdiction."

War is simply outside their authority. Period.

[veracious]

Hear, hear!