The Supreme Court Has Just Selected Our Next President
By Gary Krasner (06/13/08)
The Supreme Court has just handed Republicans another Presidential victory in November, with today's decision to grant enemy combatants detained at Gitmo appellate level access to civilian courts. The court effectively overturned the Military Commissions Act (MCA) enacted by Congress a couple of years ago.
Civilian courts are established in the Constitutional under Article 3 for US citizens and legal residents----so-called "US persons". Full habeas corpus, rules of evidence, and a plethora of rights constitute due process rules for this court. These rights are highly skewered and expansive to give the benefit of the doubt to the accused---who are domestic criminals deemed far less an existential threat than are external armies. And the reason habeas and Equal Protections and other Constitutional rights have pertained solely to Americans, and implanted in our civilian court doctrines, is because the Constitution is a pact between the government, and the governed. It is not a pact between the our government and Belgians, or Ukrainians, or Al Qaeda.
Alien enemy combatants have never been given access to Article 3 courts in US history. Until today, they have been given limited due process rights under the aegis of the Geneva Conventions. Since these "terrorist" combatants didn't qualify for those rights, Congress provided a superior substitute for them than even Geneva Article 5 tribunals.
We are thus going to grant the writ of habeas to terrorists on foreign battlefields, when it was never even granted to legitimate sovereigns! And the sole legal grounding for it was recognition that we are living during a time when we must please the sensibilities of the rest of the world. Yet the rest of the world doesn't grant such rights to combatant enemies of their states!
I don't know if the politically correct McCain campaign has the balls to exploit this danger to American security. But if there's a drop of testosterone left among Republicans, there will be a political pac that will air campaign ads that depict the following:
US troops---while dodging enemy fire on the battlefield---are using evidence bags to collect spent shells and bomb fragments. They will also be shown labeling the evidence bags and notarizing chain of evidence affidavits.
Our forces on the battlefield are shown as depleted, because many of them are absent from duty to appear in a U.S. court to supply testimony or be deposed by the attorneys representing the enemy combatant that they had captured.
US troops, and FBI agents are shown informing captured terrorists that they have the right to remain silent, and do not have to inform any U.S. authorities where their bombs are hidden, or where other terrorist cells may be plotting to kill American civilians. Because it might make them appear guilty of something bad!
Smiling terrorists are shown walking out of court after a federal judge dismissed all charges due to excessive force during their capture. (Use of force petitions must be heard in all Article 3 criminal courts.)
Terrorists are shown celebrating the dismissal of all charges against them, because the normal discovery rules in Article 3 courts had forced federal authorities from disclosing classified intelligence sources and methods that incriminated the terrorists.
In a war against another sovereign nation, Equal Protections would force U.S. civilian courts to accept habeas petitions from tens of thousands of enemy POWs. (Seth Waxman, attorney for Al Odah and Boumediene, conceded as much in oral arguments before the Supreme Court last December.) After granting 37 Guantanamo inmates access to civilian courts, it would be impossible to deny legitimate combatants the same rights.
If Republicans present such ads, Americans will understand the folly of this court's decision. They will elect McCain, and this time the liberals on the high court will be blamed for electing a President. Sweet.
Gary Krasner
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