Conservatives seeking a reason to rally behind John McCain for president need look no further than the Supreme Court’s 5-4 decision to give foreign enemy combatants the same rights as American citizens to challenge their detention.
Writing for the liberal majority, Justice Anthony M. Kennedy said, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”
By this reasoning, illegal aliens should be given access to the federal civilian courts to contest their expulsion from the country. Nazi soldiers taken prisoner during World War II and held on American soil should have been allowed to argue their cases in federal court. Instead of shooting terrorists on the battlefield, American soldiers should read them their rights and ship them off to American jails.
In fact, under the majority opinion in Boumediene v. Bush, suspected terrorists are given more rights than our own soldiers are afforded when charged with crimes. Their cases are restricted to the military courts.
The court acknowledged it was the first time it had ruled that “noncitizens detained by our government in territory over which another country maintains de jure sovereignty have any rights under our Constitution.” It said such a constitutional right can be suspended by Congress only in times of “rebellion or invasion.”
Justice Kennedy noted that we are not currently under “invasion or rebellion.” But that has nothing to do with a war overseas. When the Constitution was written, no one envisioned that a non-citizen who is captured overseas and held outside the U.S. could claim the right of habeas corpus to challenge his detention.
What the ruling means is that a large segment of the 270 detainees still held at Guantanamo Bay may have to be let go because soldiers in battle cannot possibly be expected to accumulate the sort of evidence that is expected in a civilian arrest.
“The level of due process they [the federal courts] require,” said David B. Rivkin, a lawyer who served in the Justice Department in the Reagan administration, “will be impossible to meet and therefore will result in the release of a substantial number of enemy combatants.”
Detainees will be able to call witnesses and demand to see classified information, putting a tremendous strain on the court system and the Justice Department. They will shop for liberal jurisdictions to bring their cases. When capturing terrorists, our own soldiers will be burdened with accumulating the amount of evidence required by law enforcement.
At the White House, lawyers confided that they consider the decision a “nightmare.” President Bush said the administration will consider new legislation “so that we can safely say . . . to the American people, ‘We’re doing everything we can to protect you.’”
Predictably, Barack Obama, along with The New York Times editorial board, applauded the decision. Obama called it an important step toward “re-establishing our credibility as a nation committed to the rule of law.”
McCain told reporters in Boston that he had not yet read the opinion, but he expressed concerns about the rights it gives suspected terrorists
“These are unlawful combatants, they are not American citizens, and I think we should pay attention to Justice [John] Roberts’ opinion in this decision,” McCain said, referring to the chief justice’s dissent.
“America is at war with radical Islamists,” Justice Antonin Scalia wrote in his dissent, adding that the decision “will almost certainly cause more Americans to be killed.” Taking the unusual step of summarizing his opposition from the bench, he went on to say: “The nation will live to regret what the court has done today.”
Already, as Justice Scalia pointed out, 30 detainees released from Guantanamo by an order of the Bush administration have allegedly “returned to the battlefield.” One detonated a suicide bomb in Iraq in May. Another resumed his post as a Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Still another murdered an Afghan judge.
The Supreme Court has shifted the balance of power to the terrorists who are determined, as FBI Director Robert S. Mueller III has told me, to wipe us out with a nuclear device.
Just as Roe v. Wade is a rallying cry for social conservatives concerned about abortion, Boumediene v. Bush should become a rallying cry for conservatives concerned about our national security.
In fact, says Brad Blakeman, a lawyer who is former CEO of the conservative Freedom’s Watch, “Conservatives are fired up over this because it shows how important it is that McCain wins. This issue is fundamental to McCain’s victory: It is not a divisive social issue like abortion. It is a mom and apple pie issue of fairness and protecting us from people who would like to behead us.”
Clearly, a vote for Obama is a vote for more liberal justices who would expand such rulings. A vote for McCain is a vote to keep our country safe while giving constitutional rights to the people they were supposed to protect: Americans.
Ronald Kessler is chief Washington correspondent of Newsmax.com. View his previous reports and get his dispatches sent to you free via e-mail. Go here now.
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