The Jihad Five

INVESTOR'S BUSINESS DAILY
First posted Thursday, June 12, 2008

Supreme Court: In a historic first, the right to habeas corpus has been bestowed upon prisoners of war — in wartime. Five justices gave terrorists a new weapon to kill more Americans with: our own Constitution.

Read More: Judges & Courts | Global War On Terror

There are many reasons why this year's election may be the most consequential ever, but Thursday's Boumediene v. Bush 5-to-4 decision in the Supreme Court is the most chilling reminder yet of how much our national security is at stake.

The next president, with the advice and consent of the next U.S. Senate, will likely decide whether our highest judicial authority is a help or a hindrance in the global war on terror. The outrageous Boumediene ruling shows that as of now, the slimmest of majorities of the justices do not understand that this nation is at war.

The court held that foreign enemy combatants at the Guantanamo Bay U.S. base in Cuba have the right to pursue habeas challenges to their detention in U.S. courts.

It is unprecedented in the history of U.S. law, and for all the soaring rhetoric in Justice Anthony Kennedy's opinion that "the laws and Constitution are designed to survive, and remain in force, in extraordinary times," the fact is that Gitmo detainees already had the equivalent of habeas corpus rights.

As Chief Justice John Roberts noted in his dissent, those terrorist POWs enjoy "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

The real issue, according to Roberts, writing also for Justices Samuel Alito, Antonin Scalia and Clarence Thomas, "is whether the system the political branches designed protects whatever rights the detainees may possess. If so, there is no need for any additional process, whether called 'habeas' or something else."

But it was left to Justice Scalia, in a separate dissent also joined by the other three 'no' votes, to describe Boumediene's disastrous real-world consequences: It "will make the war harder on us," Scalia declared, reading from the bench. "It will almost certainly cause more Americans to be killed."

Of detainees already released from Gitmo, Scalia pointed out that one "masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes." Another "promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. . . . Still another murdered an Afghan judge." And last month came news that another detainee committed a suicide bombing against Iraqi soldiers in Mosul.

Boumediene will force military attorneys to release evidence against enemy combatants to the terrorists' own lawyers. It will likely see U.S. troops serving in Iraq and Afghanistan be called as witnesses. And detainees will have a legal right of access to classified information.

The decision "sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner." He concluded: "The Nation will live to regret what the Court has done today."

The nation has the power to undo such self-destructive court decisions — by electing a president and senators who will place jurists on the Supreme Court who respect wartime laws passed by elected representatives of an American people seeking to protect themselves. It's never been more imperative than after Wednesday's ruling that that happen in November..