The Supreme Court's Habeas Corpus Decision
By Harris R. Sherline
June 30, 2008
Split 5-4, the U.S. Supreme Court recently handed down a decision about habeas corpus rights of enemy combatants that Senator John McCain characterized as "one of the worst decisions in the history of this country." I agree and here's why:
Henry Mark Holzer, professor emeritus at Brooklyn Law School, made the following points, among others, in an article titled, "The Supreme Court Wins, America Loses," in which he notes,
- "...for the first time in our Nation's history, the court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war."
- "...the Court was able to review the case, in light of its long-standing practice of waiting until lower federal courts have an opportunity to rule."
- "...the majority (of the Court) dishonestly eviscerated its controlling precedent on habeas corpus."
- '...habeas corpus was never intended to apply, and never did apply, to unlawful enemy combatants captured outside the United States."
- "...the decision will severely compromise the military's effectiveness in fighting terrorism."
- "...the judicial usurpation of presidential war-powers has now become nearly complete."
In his dissenting opinion, Chief Justice Roberts said: "The majority rests its decision on abstract and hypothetical concerns. Step back and consider what, in the real world, Congress and the Executive have actually granted aliens captured by our Armed forces overseas and found to be enemy combatants." He continued, "...This statutory scheme provides the combatants held at Guantanamo greater procedural protections than have ever been afforded alleged enemy detainees -- whether citizens or aliens -- in our national history.'"
Justice Roberts further asked: "So who has won?"
Answering his own question, he noted:
- "Not the detainees"
- "Not Congress"
- "Not the Great Writ [of habeas corpus]"
- "Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants."
- "And certainly not the American people, who today lose a bit more control over the conduct of this nation's foreign policy to unelected, politically unaccountable judges."
National Review also offered the following observations, among others:
- "...the Court invalidated laws it had only recently implored Congress to enact, laws that provided these prisoners with generous protections never previously extended to enemy operatives in American history."
- "...Americans must regard enemies as if they were mere criminal defendants, entitled to an exacting legal process -- access to discovery, witnesses, counsel, etc. -- that will, as a practical matter, make it impossible to detain them without shutting down interrogations prematurely and informing the enemy of our national-defense secrets."
- "...foreign al-Qaeda killers detained in Cuba can march right into the federal district courts and demand what, suddenly, are their constitutional rights...more access to classified information? Subpoenas commanding the testimony (and cross-examination) of our soldiers regarding the circumstances of capture? Miranda warnings? Prompt access to counsel, which is certain to halt any questioning -- and thus any revelation of lifesaving intelligence -- before it can even start? Full-blown trials in the criminal-justice system with the same presumptions of innocence, privacy, and other privileges vested in American citizens. And who will adjudicate the resulting mess? Our imperial court, of course."
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