Nevertheless, the Supreme Court concluded that Hamdi was entitled not only to challenge the circumstances of his detention before a court, but also to present arguments against his detention. As the Court put it, “We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decision-maker.”22
In his dissent, Justice Clarence Thomas contended that the constitutional authority of the president to wage war and protect the security interests of the American people should take precedence over the perceived authority of the courts. National security and the president’s constitutional authority and duty to wage war for the protection of the United States, Thomas pointed out, are matters over which the courts should have no jurisdiction:
The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.23
Thomas raised two other practical issues resulting from the Court’s decision—the diversion of wartime personnel and the exposure of classified information:
It also does seem quite likely that, under the process envisioned by the [Court], various military officials will have to take time to litigate this matter. And though the [Court] does not say so, a meaningful ability to challenge the Government’s factual allegations will probably require the Government to divulge highly classified information to the purported enemy combatant, who might then upon release return to the fight armed with our most closely held secrets.24
Nothing in the Constitution gives parity, much less primacy, to the courts over war-related matters. Indeed, as Thomas argues, the Constitution assigns such authority to the president. The Supreme Court somehow believes that courts are more qualified or trustworthy to rule on detentions. But why is that? Why is it assumed that judges are more competent in weighing the rights of individuals against national-security needs? The ingrained bias against the elected branches and their ability to make well-reasoned and just judgments is destructive to the entire notion of representative government. If elected officials cannot be trusted to make wise decisions about national security, then they cannot be trusted to make decisions at all. There is no evidence that the president has abused his constitutional authority in detaining Hamdi or anyone else. There has been no widespread detention of U.S. citizens—only two, to the best of my knowledge—and only after an extensive vetting process. This hardly justifies the Court’s intervention and usurpation of executive authority.
The issues in Hamdi do not present garden-variety criminal matters, yet the Supreme Court couldn’t resist treating Hamdi’s detention this way by cobbling together an unclear due-process requirement, which will be left to the lower courts to figure out.
These days, a single U.S. citizen working in collaboration with al Qaeda or other terrorist groups is potentially more dangerous to more people in this nation than any foreign standing army. And information he might have about future attacks—combined with the government’s need for secrecy to thwart them—justifies a decision by the president to detain “illegal combatants” without judicial second-guessing.25
As bad as the Hamdi decision was, the Supreme Court went even further in Rasul v. Bush. In Rasul, the Court determined that federal courts could hear cases in which foreign enemy combatants challenge their detention.26Rasul involved two Australian citizens and twelve Kuwaiti citizens “who were captured abroad during hostilities between the United States and the Taliban.”27
These enemy combatants have also been detained at Guantanamo Bay. Justice John Paul Stevens, writing for the majority, ruled that they had the right to petition the federal courts to review their status as detainees.28 Stevens devoted considerable verbiage attempting to distinguish the facts in Rasul from the 1950 Supreme Court opinion in Johnson v. Eisentrager. 29Eisentrager established the principle that aliens detained outside the sovereign territory of the United States could not ask federal courts to review their status. The reasoning of the Court was explained by Robert D. Alt, a fellow in legal and international affairs at the John Ashbrook Center for Public Affairs:
[Proceedings by alien detainees] would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be [a] conflict between judicial and military opinion highly comforting to enemies of the United States.30
In Eisentrager, twenty-one German nationals were taken into custody in China at the conclusion of World War II. They were tried and convicted of war crimes by a U.S. military tribunal in China. They were then remitted to a military prison in Germany. These individuals sought to bring their case to America by filing a writ of habeas corpus in the U.S. District Court for the District of Columbia.31 The issue was whether alien combatants should have access to civilian courts.32
Justice Robert Jackson, writing for the Supreme Court’s majority, was adamant in denying aliens this access: “We are cited to no instance where a court in this or any other country where the writ [of habeas corpus] is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction.”33
Jackson realized the danger enemy combatants posed. “But these prisoners were actual enemies, active in the hostile service of an enemy power. There is no fiction about their enmity.”34 The German soldiers were denied the ability to petition civilian courts for review of their status.
War limits the right of certain aliens to access U.S. courts, or at least it used to. As Jackson wrote:
It is war that exposes the relative vulnerability of the alien’s status. The security and protection enjoyed while the nation of his allegiance remain in amity with the United States are greatly impaired when his nation takes up arms against us. While his lot is far more humane and endurable than the experience of our citizens in some enemy lands, it is still not a happy one. But disabilities this country lays upon the alien who becomes also an enemy are imposed temporarily as an incident of war and not as an incident of alienage.35
Obviously, we are not at war with the home countries of the individuals who initiated the Rasul case (they are citizens of Australia and Kuwait). However, the principle is the same. When these men joined the Taliban and fought for al Qaeda, they became part of an organization that is at war with the United States. Denying foreign enemy combatants access to U.S. courts is an “incident of war.”
Eisentrager was clear. The enemy combatants in Rasul should never have been granted the right to challenge their detentions in federal courts. Stevens dismantled the precedent established in Eisentrager, claiming that the facts in Rasul were sufficiently d
ifferent to compel a contrary result:
Petitioners [in Rasul] differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercised exclusive jurisdiction and control.36
The fact is that Eisentrager and Rasul are identical in two significant respects—both involved foreign enemy combatants who never set foot in America, and both involved the detention of foreign enemy combatants outside the United States. There was no reason for the Court to take up this case, and no reason to reverse Eisentrager. Stevens and the majority were bent on substituting their preferred view for the president’s.
Stevens also attempted to distinguish Eisentrager by relying on a statute, which states, in part: “Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdiction.37 (Emphasis added.)
This, too, is disingenuous. Stevens decided that “within their respective jurisdiction” means any territory over which the United States exercises complete control, but not “ultimate sovereignty,” such as on a military base located in a foreign country.38 Clearly, however, “within their respective jurisdiction” means the territorial locations that demarcate each federal court’s reach.39 Guantanamo Bay is outside such locations; consequently, the law has no application. No matter. Here is how Stevens rewrote the statute: “[B]ecause the writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody, a district court acts within [its] respective jurisdiction within the meaning [of the law] as long as the custodian can be reached by service of process.”40
Any enemy combatant can now challenge his detention in a federal court provided the combatant (or the combatant’s relatives or friends) is able to deliver a lawsuit to the Department of Defense or the Department of Justice.
The practical implications of this decision are immense. As Justice Antonin Scalia explained:
The consequence of this holding, as applied to aliens outside the country, is breathtaking. It permits an alien captured in a foreign theater of active combat to [bring a suit] against the Secretary of Defense. Over the course of the last century, the United States has held millions of alien prisoners abroad. A great many of these prisoners would no doubt have complained about the circumstances of their capture and the terms of their confinement. The military is currently detaining over 600 prisoners at Guantanamo Bay alone; each detainee undoubtedly has complaints—real or contrived—about those terms and circumstances. The Court’s unheralded expansion of federal-court jurisdiction is not even mitigated by a comforting assurance that the legion of ensuing claims will be easily resolved on the merits…. From this point forward, federal courts will entertain petitions from these prisoners, and others like them around the world, challenging actions and events far away, and forcing the courts to oversee one aspect of the Executive’s conduct of a foreign war.41
Former federal prosecutor Andrew C. McCarthy made an excellent point when he wrote:
[W]hen our military fighting overseas, at the height of active hostilities, grants quarter by apprehending rather than destroying the forces arrayed against it, those forces, those alien enemies trying to kill Americans—alien enemies who secrete themselves among civilians; who use humanitarian infrastructure like ambulances, hospitals and schools to carry out their grisly business; who make a mockery of the laws and conventions of civilized warfare; who torture and kill their captives with a bestiality that defies description; whose only contact with America is to regard her with this savagery—have resort to the courts of the United States to protest their detention and to compel the executive branch, while it is conducting battle, to explain itself. Just to describe this breathtaking claim of entitlement should be to refute it. Yet the United States Supreme Court has ruled in favor of the enemy.42
So now, for the first time in American history, captured alien enemy combatants will have access to our courts. They will be afforded some kind of due process hearing and one day I expect they’ll have a right to competent counsel, paid for by the American taxpayer, and the right to compel testimony from the soldiers who apprehended them. Even for the Supreme Court, this is a grotesque perversion of the Constitution.
In truth, despite allegations of vast civil liberties violations, President Bush has conducted this war with great restraint, when compared with the actions of past presidents. For example, Article I of the Constitution describes the legislative powers of Congress. Among those powers, Section 9, Clause 2 provides that, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”43 Yet, on several occasions during the Civil War, President Abraham Lincoln suspended the writ to silence or punish those who were sympathetic to slavery or states’ rights.44 As author Craig Smith describes:
During the Civil War, President Lincoln suspended the writ of habeas corpus first in Maryland and then in southern Ohio because of its sympathy for slavery and states’ rights and its geographic location. Reluctantly, Lincoln took the action against Maryland so that he could prevent its legislature from meeting and voting for secession. In September of 1861, nine members of the Maryland legislature were arrested. It was the first time a president of the United States had prevented a state legislature from meeting and was a clear violation of their constitutional rights. However, the threat of Civil War was so severe that Lincoln felt justified in his unprecedented action.
The same would be true in Ohio. During his campaign for governor of Ohio, Congressman Clement L. Vallandigham gave a fiery speech in southern Ohio in support of the rebel effort. When General Burnside read reports of the speech in the newspaper, he had Vallandigham arrested and sent to Boston for trial. Lincoln eventually exiled the Congressman to the South because he had some doubts about incarcerating a sitting congressman for delivering a political campaign speech.45
Lincoln’s suspension of the writ of habeas corpus was eventually challenged by John Merryman, a secessionist and citizen of Maryland. The case reached the Supreme Court, where the chief justice was Roger B. Taney (author of the 1856 Dred Scott decision upholding slavery). In Ex parte Merryman, Taney, writing for the Court, held that only Congress could suspend the writ of habeas corpus.46 Lincoln ignored the opinion. In 1863, Congress passed a statute authorizing Lincoln to suspend the writ.47
Obviously, President Bush hasn’t imprisoned or exiled members of Congress or state legislators who oppose his handling of the war on terrorism. Indeed, he hasn’t taken any actions to silence his critics. The Bush administration has detained only two U.S. citizens, and then only for overt acts of war.48
On February 19, 1942, during World War II, President Franklin Roosevelt issued Executive Order 9066, which directed military commanders to designate areas “from which any or all persons may be excluded.”49 While the order didn’t apply specifically to a particular ethnic group, its effect was clear. Tens of thousands of Japanese Americans and Americans of Japanese ancestry were systematically removed from their homes in western coastal regions and forced into internment camps—not because of any evidence of criminal or disloyal behavior, but because of their race.
The president has not issued an edict rounding up, say, law-abiding Islamic and Arab Americans, or Americans of Arab ancestry, forcing them into guarded camps where the government could watch over them. In fact, the administration is loath to give special scrutiny to aliens who travel to the United States even from countries known to harbor or tolerate terrorists, including the home countries of the September 11, 2001, terrorists. For the Supreme Court to intervene in the Hamdi and Rasul cases, and use them as
vehicles to usurp the commander in chief’s role despite the president’s restraint, is indefensible as a matter of law and policy. Thanks to the Supreme Court’s ruling, in July 2004, the detainees at Guantanamo Bay were informed they could use American courts “to contest their detention.”50
It is difficult to win a war when the enemy is armed not only with rifles and rocket propelled grenades, but also with subpoenas, affidavits, and lawyers. And it’s difficult to maintain a republic when the judiciary abuses its constitutional authority. These cases illustrate perhaps more than any others just how dangerous and reckless an unbridled judiciary can be, not only to the Constitution, but to our national security.51
CHAPTER NINE
SOCIALISM FROM THE BENCH
“Freedom in economic arrangements is itself a component of freedom broadly understood, so economic freedom is an end in itself…. Economic freedom is also an indispensable means toward the achievement of political freedom.”
Milton Friedman, 19621
Have you ever wondered how a federal government that is supposed to have limited power can now involve itself in essentially any aspect of our society? The answer comes down to two words: commerce clause. The Constitution gives Congress the power, under Article I, Section 8, “to regulate commerce with foreign nations and among the several States.”2 Under the Articles of Confederation, each state had been free to issue its own currency and set its own tariffs.3 The purpose of the commerce clause was to promote commerce and trade by breaking down these barriers. But over the years, the Supreme Court has adopted an expansive definition of “commerce” to justify virtually unfettered federal intrusion into the conduct of state and local governments, and to defend the establishment of massive bureaucracies and their imposition of seemingly endless regulations on private enterprise. As a result, the government has become increasingly centralized, and the economy is lurching toward socialism.
Men in Black Page 14
