COMMENTARY: Next attack: Coming soon?

Close these hate schools NOW!!!! Find own oil and alternative fuels and let the whole mid-east sink into oblivion FOREVER!!!!

I spy a business opportunity in the Supreme Court's split decision holding that enemy combatants are more akin to criminals than soldiers. I hope to be first to the battlefield with laminated Miranda advisories printed in every known Arabic dialect to be respectfully presented to enemy combatants who happen to fall into our hands. My proposal includes videotaping each individual presentation and an offer of free expert legal representation in federal court. To do any less would be un-American.

Mr. Thomas: Your strong criticism of the U.S. Supreme Court’s recent opinion in Boumediene rests on generalizations, exaggerations, and some mistaken facts. Perhaps on reflection you will reconsider your conclusions. 1. The right of habeas corpus, you say, should be reserved only for American citizens. You will be pleased to learn that in Boumediene the Supreme Court has not given new rights to non-citizens in the U.S. It is a long-established principle of American law that many rights (including the right to habeas corpus) are extended to all “persons” in the U.S. and not just to “citizens.” For example, an international visitor who is arrested here has as much right under the Constitution to habeas corpus as does a U.S. citizen living here. What distinguishes the case of the Guantanamo detainees is not that they are non-citizens but that they are in Guantanamo – beyond the sovereign territory of the U.S. 2. You assert that the Guantanamo detainees were “seized on the battlefield.” That characterization provokes a dramatic but misleading image. The Guantanamo detainees came into the custody of the U.S. in various ways. Some may have been seized bearing arms against the U.S. But others were arrested in their homes or at work. Some were delivered to the U.S. in return for the payment of a bounty to captors whose motives may have been only financial. The named plaintiff, Mr. Boumediene, for example, is a Bosnian citizen who was taken into custody by U.S. peacekeeping forces in Bosnia after he was released from prison by the Bosnian government (following a Bosnian Supreme Court ruling that there was no basis to hold him). You may say that in the “war on terror” the entire globe is a “battlefield,” but if that is what you mean, then your statement “seized on a battlefield” is merely a rhetorical exaggeration. 3. You quote the “Habeas Clause” of the Constitution saying that habeas may not be suspended except in the case of rebellion or invasion. “Have we not been invaded?” you ask regarding the 9/11 attacks. But neither the President nor the Congress suspended habeas corpus in response to 9/11. Instead, Congress accepted the Administration’s position that the Guantanamo detainees are not entitled to habeas corpus because they are being held in Guantanamo – beyond the sovereign territory of the U.S. [More following]

[continued] 4. You worry that the court’s decision will signal to the detainees “that they can ‘game’ the system, demanding rights and protections unknown in their countries of origin.” You must be aware that some of the original Guantanamo detainees are citizens of countries, such as the United Kingdom and Australia, where resort to habeas corpus exists. Moreover, do you really mean to suggest that detainees be given the rights of their country of origin? That is an interesting idea, but that is not the law, and no one was proposing that in Boumediene. If anyone is trying to “game the system,” it is the Administration who wanted to carve out a zone in Guantanamo, beyond the ambit of the U.S. Constitution of the law of any other country, where the detainees could be held to whatever standard the Administration chose to create for the occasion – a standard that the Court concludes did to meet traditional benchmarks for a habeas hearing. I invite you to consider that many experts agree that at least some of the remaining 270 Guantanamo detainees are innocent of charges that would allow the U.S. to continue their detention. You repeatedly assert – without elaboration – that all of these people are “terrorists.” In fact, a major point of the Boumediene case was to decide whether the detainees get a hearing to determine whether the U.S. has a legal basis to hold them. The Court is not concluding that they are innocent; it is saying that the executive is bound by our Constitution to give them a habeas hearing. (Remember that even the Administration agrees that the Guantanamo detainees deserve a “hearing.” The Administration does not agree that this hearing must rise to the level of a habeas hearing.) The existence of habeas corpus distinguishes a civil society from an authoritarian one. The “Habeas Clause” is in the original body of the U.S. Constitution, predates the Bill of Rights, and can be traced to the Magna Carta. In its decision, the Court gives deference to the idea that the American President must act within the tradition of the Magna Carta. The Court declined to base its ruling on what even you might agree is a hyper-technical analysis: A distinction based merely on “sovereignty” without regard to the actual circumstances. The court was more impressed that the detainees have been held by the U.S. without a hearing for up to six years in a maximum security facility on a military base that has been under the undisputed physical control of the U.S. for over a century than by the fact that the lease establishing our perpetual right to the base cedes to Cuba nominal “sovereignty” of the land. Does such a conclusion really deserve your scorn? [More following]

[continued] Finally, may I say that your use of certain terms and ideas in this column was inappropriate in a serious discussion of these issues. References to a “next attack,” “blood” on “their hands,” and the suggestion that dead loved ones be “wrapped in a copy” of the Supreme Court’s ruling are unwarranted emotional appeals and diminish your arguments. Robear

There needs to be an amendment to the Constitution that requires a constitutional referendum by the people when the Judicial Branch overrules the Legislative with regard to constitutional interpretation. The soldier on the battlefield does not care about the rights of someone who is attempting to take his or her life. Moral high ground has nothing to do with winning a firefight or being killed by IED's. We are placing the choice of whether these detainee's are going to come back and carry out their original mission to kill Americans in the hands of our military on the battlefield. The same scenario in Saving Private Ryan has proven to be not that far off from reality with those detainee's that have been released. These guys aren't accused of petty theft or misdemeanors, this isn't law enforcement, this is war. They are being detained because they were being accused of being trained and trying to kill our men and women in uniform. This is an issue for the people, not the lawyers.

Reply to Soxconn Two thoughts for you to consider: Your suggestion that there be a public referendum when the courts declare a legislative enactment to be unconstitutional is novel. But it is not what the founders had in mind. As you know, the three branches are to serve as checks on each other. The legislative branch reflects the will of the people (especially the House, whose entire membership must stand for election every two years). But the judiciary was to be a step removed from the heat of the moment and the immediate will of the people. Thus, the Supreme Court justices (and all other so-called “Article III” judges, such as the circuit court and district court judges) are appointed for life. The judiciary is to make decisions based on principle. And that is what the Boumediene court did. You suggest that this issue can be analyzed as whether we treat terrorists as a “criminal” problem or a “military” problem. It is not that simple. Even on an active battlefield, there are rules of conduct. The scene in SPR you allude to presents a tough choice. But that is not relevant here. The Guantanamo detainees have been in US custody for 6 years and are far from the battlefield. Some of the strongest critics of the Administration’s approach to handling the detainees are senior military officers, but they are constrained in their criticisms by their professional desire to avoid criticizing the commander-in-chief in public. You might “google” the name Albert Mora, the former general counsel of the Navy, and read about his role in pushing aback against the Administration’s approach inside the system.