Obama, Senate Should Heed Meese on Court

Monday, 19 Apr 2010 03:15 PM

By Frank Gaffney

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Former Reagan Attorney General Edwin Meese continues to be one of the most influential conservatives in the country today. To paraphrase an old marketing slogan, when Ed Meese talks, people listen.

His advice comes in handy now, as President Obama prepares to select a new Supreme Court nominee whose views on national security and the law may have enormous bearing on the prospects for our victory in this war for the free world.

After all, as Meese observed in a major policy address before an American Bar Association audience Thursday: "In four major cases, the Supreme Court has involved itself in the conduct of this war in what has been a change in terms of the constitutional history and the traditions of the country."

Compounding the lack of judicial restraint has been the "lack of clarity" in the executive branch with respect to key aspects of this war, according to the nation's one-time top law enforcement officer. Particularly egregious has been the Obama administration's determined effort to obscure whether we are even at war and with whom.

Mr. Meese observed:

As The Wall Street Journal stated just last week, “The United States cannot effectively combat the root causes of Islamic extremism by ignoring them. The War on Terror won't be effective if this country overlooks the nature of the enemy and his motives.”

We must recognize that we are in a war caused by certain belligerents who are seeking to impose their notions of Shariah by threats, violence, and intimidation on as much of the world as they possibly can, and who are committed to hostile action against those nations and those forces, including the United States, they believe stand in their way.

Compounding the danger from such foes is the fact that they generally are illegal enemy combatants. Mr. Meese properly says they must be so characterized under the internationally recognized laws of war because of the way in which they conduct themselves, which makes them ineligible to be treated as prisoners of war, which have certain privileges under the Geneva conventions. It is because they don't operate in uniform, because they don't operate in military units that are subject to command and control and military discipline, because they do not carry their weapons openly, because they violate the laws of war by specifically targeting civilians.

Faced with these sorts of enemies and their preferred, illegal tactics, Meese concludes that, "Obtaining information from captured combatants is a critical part of gaining th[e] kind of intelligence we need. In the case of enemy aliens, it's appropriate that we use extensive interrogation and that we have continued detention by military authorities. It's also important that we hold these captives until they are no longer a threat."

He then laid out four enormously important suggestions to help ensure we have the "consistency, fairness and constitutional clarity" so urgently required in this time of war:
  • "United States citizens and foreign nationals legally in this country, [who] were captured anywhere except on the battlefield, should be handled by the criminal process in civilian courts. This comports with what has been usually the tradition in regard to United States citizens."
  • "Captured enemy aliens who engage in war against the United States or against United States forces — including those who enter the United States to attack us here — should be handled by the military process, including military commissions as the ultimate communicatory body and including being able to be interrogated without being Mirandized and all the other things that would normally go with a civilian court process."
  • "United States citizens caught on the battlefield where they have actually taken up arms and fought side by side with enemy aliens, they should be handled the same way as the enemy aliens are, through the military process."
  • "I believe that we as lawyers and as members of a law organization should advocate and encourage that the judiciary should return to its traditional role and refrain from further intrusion into the conduct of war. This comports with what I believe is the constitutional allocation of authority."
On that last point, Ed Meese cites one of the most influential members of the Supreme Court on national security matters, Robert Jackson. Mr. Meese recounted how Justice Jackson, in his opinion in a landmark 1948 case, Chicago Southern v. Waterman Steamship, said "the very nature of executive decisions as to foreign policy — and he included in that concept, defense activities — is political, not judicial."

“Such decisions are fully confided by our Constitution to the political departments of the government, executive and legislative. They are delicate, complex, and involve large elements of prophecy. They are, and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. [It is] a matter of accountability. They are decisions of a kind for which the judiciary has neither aptitude, facilities, nor responsibility, and have long been held to belong in the domain of political power, not subject to judicial intrusion or inquiry.”

President Obama and members of the Senate would be well advised to heed Meese's counsel and evaluate any candidate for the Supreme Court against the Jackson standard of judicial restraint with respect to national security matters. The fate of the free world may depend upon it.


Frank J. Gaffney Jr. is president of the Center for Security Policy, a columnist for The Washington Times and host of the nationally syndicated program "Secure Freedom Radio" heard at 9 p.m. weekdays at WTNT 570 AM in Washington.

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