Habeas Corpus (Part One)

Last week the Supreme Court ruled that enemy combatants held at the U. S. base at Guantanamo have the right to challenge their status in Federal court. The 5 – 4 decision has been hotly debated. The decision of Boumedine v. Bush grants writ of habeas corpus to enemy combatants captured on the battlefield in a time of war. These combatants are not U. S. citizens and most have never set foot in the United States. The decision also ruled that the Military Commissions Act of 2006 was unconstitutional. This is largely being reported as a defeat for President Bush. I believe it is much more ominous than that, and you might not realize why.

Nothing exists in a vacuum, and this decision is no different. In order to understand the future problems with this decision, we need to examine its past. After 9/11, the Justice Department believed the Supreme Court would stand by precedent and not apply constitutional rights to enemy combatants held outside the United States in a time of war. Turns out, the Supreme Court isn’t really worried about precedent. Remeber this, we're going to revisit it later.

In the 2006 Hamdan v. Rumsfeld case, the Supreme Court ruled that military tribunals set up by President Bush were not in accordance with the Uniform Code of Military Justice and the Geneva Conventions. However, the court also ruled that if the President wanted to proceed with trials in Guantanamo Bay, the President should get Congress to pass laws with direction for how the cases are going to be handled. This is exactly what Congress did.

As John Yoo wrote in the Wall Street Journal, “[u]ntil 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.” He goes on to say:

In World War II, no civilian court 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 trilogy 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.

What does this decision mean? Being a fan of the "Law of Unintended Consequences", I thought I would speculate on some of the possible outcomes of this decision. One outcome I have heard debated in a number of sources is: What do U. S. forces do with people captured on the battlefield? Many believe the U. S. Military is now going to have to collect evidence, and mirandize enemy combatants. Imagine this, a soldier is fighting for his life, bullets are flying, and he see’s someone come around the corner with a Soviet RPG. Does he have to read this person their Miranda rights before deciding to fire or not?

Others believe our forces will simply not capture terrorist on the battlefield. They argue it will be more effective to simply kill the bad-guys where they find them. I don’t think this is very accurate. Our soldiers are warriors and have behaved honorably in combat. I believe it is much more likely that they will simply turn any captured enemy combatants over to the police and secret police of the country they are in. If we capture an Iranian officer in Iraq, we turn him over to the Iraqi Army and ask to sit in on the interrogation. If this happens, does the combatant receive better treatment in Iraq than he would have received in G’itmo?

What if we capture Osama bin Laden? Sen. Obama has said he believes that the terrorist should stand trial. For those of you old enough to remember the O.J. trials, imagine a similar fiasco with the mastermind of 9/11 at its center. Do you believe the bin Laden fortune and the money of the clerics in Saudi Arabia can afford a good attorney? Democrats and Liberals are always big on our international image. Imagine how we look if Osama is found not guilty in one of our own courts. Perhaps he could even stand trial in a court in New York.

I will leave you with that mental picture until tomorrow. Come back tomorrow for a few more problems with this decision, and my humble recommendations for how to fix it.