A Case of Judicial Imperialism

Last week's Supreme Court 5 to 4 decision in Boumediene v. Bush is judicial imperialism of the highest order.

Boumediene should finally put to rest the popular Liberal-Left notion that evil right-wing conservatives dominate the Supreme Court. The Academic Elite used to grouse about the Rehnquist Court's "activism" for striking down minor federal laws on issues such as whether states are immune from damage lawsuits, or if Congress could ban handguns in school.

The first casualty of this ruling was precedent. Now, I am not a lawyer (I'm an honest man), but I understand the writ of habeas corpus as this: Americans (and aliens on our territory) can challenge the legality of their detentions before a federal judge. Until Boumediene, the Supreme Court had never allowed an alien who was captured fighting against the U.S. to use our courts to challenge his detention.

In World War II, no civilian court even considered reviewed the thousands of German prisoners housed in the U.S. Federal judges never heard cases from the Confederate prisoners of war held during the Civil War. In a triple-play of cases decided at the end of World War II, the Supreme Court agreed that the writ did not benefit enemy aliens held outside the U.S. The Justice Department relied on the Supreme Court's word (obviously a case of misplaced trust) when Guantanamo Bay was evaluated as a place to hold al Qaeda terrorists in the months after the 9/11 attacks.

The Boumediene gang of 5 (Justice Anthony Kennedy -- joined by the liberal bloc of Justices John Paul Stevens, David Souter, Ruth Ginsburg and Stephen Breyer) claims judicial supremacy for the striking down of a wartime statute, agreed upon by the president and large majorities of Congress, while hostilities are ongoing, no less.

They also ignored the Constitution's structure, which grants all war decisions to the president and Congress. In 2004 and 2006, the Court tried to extend its reach to al Qaeda terrorists held at Guantanamo Bay. It was overruled twice by Congress, which has the power to define the jurisdiction of the federal courts. Congress established its own procedures for the appeal of detentions.

Incredibly, these five Justices have now defied the considered judgment of the president and Congress for a third time, all to grant captured al Qaeda terrorists the exact same rights as American citizens to a day in civilian court.

Judicial deference, respect for the executive and legislative branches, and pure common sense weren't concerns here either. The Court refused to wait and see how Congress's 2006 procedures (Military Tribunals) for the review of enemy combatant cases work. Congress gave Guantanamo Bay prisoners more rights than any prisoners of war, in any war, ever. The justices violated the classic rule of self-restraint by deciding an issue not yet before them.

Judicial micro-meddling will now intrude into the conduct of war. Federal courts will jury-rig a process whose every rule second-guesses our soldiers and intelligence agents in the field. A judge's view on how much "proof" is needed to find that a "suspect" is a terrorist will become the standard applied on the battlefield. Soldiers will have to gather "evidence," which will have to be safeguarded until a court hearing, take statements from "witnesses," and probably provide some kind of Miranda-style warning upon capture. The US Military will have more lawyers than warriors!

No doubt ambulance-chasing lawyers will swarm, like vermin, to provide representation for new prisoners. John Edwards will now have something to do.

President Bush has declared, rightly, that the government will abide by the decision. No American lives are yet imperiled, as the courts will have to wrestle with the cases for months, if not years. But the upshot of Boumediene is that courts will release detainees from Guantanamo Bay, or the Defense Department will do so voluntarily, in the near future.

Just as there is always the chance of a mistaken detention, there is also the probability that we will release the wrong man. As Justice Antonin Scalia's dissenting opinion notes, at least 30 detainees released from Guantanamo Bay -- with the military, not the courts, making the call -- have returned to Afghanistan and Iraq battlefields.

The justices act like we are no longer really at war. Our homeland has not suffered another 9/11 attack for seven years (see previous post), and our military and intelligence agencies have killed or captured much of al Qaeda's original leadership. What's left is on the run, due to the very terrorism policies under judicial attack.

The only real hope of returning the Supreme Court to its normal wartime role rests in the November elections. Sometimes it is difficult to tell Sens. Barack Obama and John McCain apart on issues like campaign finance or global warming. But they have real differences on Supreme Court appointments. Mr. Obama had nothing but praise for Boumediene, while Mr. McCain attacked it and promised to choose judges like Chief Justice Roberts and Justice Samuel Alito, both dissenters.

Because of the advancing age of several justices (Justice Stevens is 88, and several others are above 70), the next president will be in a position to appoint a new Court that can reverse the damage done to the nation's security.

This should be considered when deciding on who you will vote for president.