Horace Cooper: Dangerous overreach


ACRU Staff


June 16, 2008

This op-ed originally appeared in the Washington Times on June 16, 2008

On Thursday June 12, 2008, a narrow five-member majority struck down the Detainee Treatment Act of 2005, the so-called military tribunals’ law.This law was passed by Congress to set up procedures for the legal treatment of unlawful enemy combatants in order to prevent terrorists from flooding our federal courts.Not only does the decision in the case, Boumediene v. Bush, run contrary to precedent and the Constitution, but it is yet another dangerous example of the judiciary usurping the constitutional authority of the political branches of government.

Most importantly, this ruling stands sharply at odds with the national-security reality that Americans face: We are in a global war with terrorists who seek to destroy our country and our way of life. This threat is real. They have attacked us at sea and on land, at home and abroad. While we didn’t initially recognize what they were doing, the body count reveals the truth: more than 3,000 dead in the 21st century. Unfortunately, this ruling, by denying the seriousness of the threat, will hinder our efforts to save American lives.

While the errors in the case are numerous, several obvious ones must be addressed. First, this decision marks the first-ever finding (in the entirety of American history) of a constitutional right of habeas corpus for alien combatants held abroad during a war.The opinion completely ignores the reality that the “writ of habeas corpus” was always understood constitutionally and in common law as a matter exclusively for dealing with domestic detention – that is, detention inside the United States.This major power grab by an arrogant judicial majority discards nearly 200 years of precedent.

Second, the court exhibits its most radical manifestation of judicial imperialism when it overturns the Detainee Treatment Act of 2005 because the law was purportedly a means for Congress and the president to “govern without legal constraint” outside the United States.To ensure that it gets the final say, the court leaps past a basic and time-tested constitutional question of whether the litigants in question even have standing to raise their complaint in U.S. federal courts. Its ill-considered actions now leave no logical reason why the court couldn’t use this same argument as a justification for interfering with and overseeing detentions in Iraq, Afghanistan or any other place where the U.S. is or may be at war.

Third, this activist decision strikes down perhaps the most comprehensive set of procedural safeguards ever provided to military detainees. Congress and the president worked carefully to craft a set of rules – having access to specialists unavailable to courts – and they did so after careful review and debate. The court sets aside these findings and doesn’t even list a set of replacements, observing instead that lower courts will develop procedures subject to their review. This time- consuming process of discovery and navel-gazing is precisely what the Framers sought to avoid- especially with regard to national-security matters.

And finally, the liberal majority takes great pleasure in noting that there is no recorded case in American history of denying jurisdiction for a “writ of habeas corpus” outside the United States. This logic is exactly backwards. It has been so overwhelmingly accepted that the “writ of habeas corpus” only applies inside the United States. Should we be surprised that no one but the attorneys for desperate and dangerous terrorists and liberal activists on the Supreme Court would make such an argument?

And guess what else this decision does. It puts our servicemen – the men and women who actually captured these rogue warriors on the battlefield – on an equal playing field with the terrorists in our courts of law. Not unlike America’s failed “catch and release” immigration policy, the court’s actions envision a world where our soldiers risk their lives capturing and detaining some of the most deadly terrorists on the globe only to find them eligible for release after a hearing before a liberal activist judge. This is unconscionable and it will put more Americans at risk of dying. This is not what our Framers intended and can’t be supported by the U.S. Constitution.

While reported as a loss for the Bush administration, make no mistake: This ruling represents a major setback for our country’s national security. Emboldened terrorists will be less likely to surrender; they will be less likely to end their plans for another attack; and perhaps worse, they will in some sense feel justified in pursuing their hateful agenda. This ruling not only shackles America’s efforts to prevail in this worldwide clash of civilizations, but it gives energy and succor to an evil and restless enemy at a time when it should be given no sanctuary or encouragement.

In the final analysis, courts simply are not the appropriate agents for directing the sophisticated and complicated policy prescriptions necessary for statecraft and national security. They are ill-equipped to assess the risks and benefits and they are immune from the accountability instrumental in ensuring that policymakers act in a manner consistent with the interests and needs of the American people. Boumediene v. Bush makes this all too clear.

Horace Cooper is a national security and constitutional expert and a senior fellow with the American Civil Rights Union.



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