Infinite Monkeys

Justice Scalia on the Supreme Court's Gitmo decision

Ben provides a good run down of some of the smarter legal opinion out there. I, too, have not read the whole Gitmo decision. But I presume that the fine editorial writers at Investors Business Daily have. And their lead in tomorrow's top editorial cuts to the quick:

In a historic first, the right to habeas corpus has been bestowed upon prisoners of war — in wartime. Five justices gave terrorists a new weapon to kill more Americans with: our own Constitution.

Blunt, but the guys at IBD nailed it. Democrats and the ACLU are dancing tonight like the Arab Street on 9/11. But make no mistake: This is an abysmal decision that has to be dispiriting to our troops in the field. As IBD noted, the Supreme Court has just turned our troops fighting a hot war against America's enemies overseas into unwilling real-life counterparts to the cast of "Law & Order." It will change their behavior — to the detriment not only to their mission, but to the terrorists they are fighting. As Exurban League's Jon noted today, the logical next move for our troops is to shoot first so there's no need to ask questions later (let alone read Miranda rights):

Instead of rounding up a house full of crazies caught in the act of making IEDs, wouldn't soldiers just kill them all? After all, the soldier might be found guilty of a war crime if he captures a suspect without reading Miranda rights in Arabic, Pashtun and Farsi. And who has time for lengthy evidence-gathering missions at a building that might soon be found under attack from other cell members? How exactly does a sergeant in the field prove probable cause to a courtroom in Delaware? Frankly, guys in the field will probably respond by simply shooting first and asking questions later.

Seems logical to me. I'll admit that I'm not an attorney, judge or constitutional law scholar. But Justices Scalia and Roberts are. And they seem to agree that this narrow 5-4 decision is a disaster. Here are some of the juicier excerpts from Scalia's dissent, aptly described everywhere as "scathing":

The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court's blatant abandonment of such a principle that produces the decision today. ...

Henceforth, as today's opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails. ...

Scalia's overarching point is that this was not a question that the Supreme Court need get involved with — especially after instructing the president and Congress to come up with a legal framework for military tribunals, which they did, twice. That's where Scalia's "bait-and-switch" line came from. But then he really lays into the majority for their hubris of deciding on an ad hoc basis "what the law is."

Our power "to say what the law is" is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. And that is precisely the question in these cases: whether the Constitution confers habeas jurisdiction on federal courts to decide petitioners' claims. It is both irrational and arrogant to say that the answer must be yes, because otherwise we would not be supreme.

That's gotta hurt, but it's true. If the balance of powers means anything, Congress and the president have to have space to fulfill their constitutional duties. The Supreme Court is supposed to be judge, not parent (or "supreme" ruler). If you've stuck with me this long, let's go to the great Scalia's big finish, where he notes rightly that this will not be the end of the "extraterritorial reach of other constitutional protections" for terrorists:

Most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today.

That's assuming a nation that surrenders its ability to fight an existential war against an implacable enemy to the whims of unaccountable courts will live long. I've opposed to the closing of Gitmo because bringing terrorists captured on foreign battlefields trying to kill Americans could subject them to the civilian justice system. There goes that argument. It no longer matters. Sigh.

Posted by Dr. Zaius at June 12, 2008 08:17 PM