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The Islamic Terrorist — Just Another American Citizen

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By John Reiniers

In My Own Words

Published: July 3, 2008

On June 23, the U.S. Court of Appeals for the District of Columbia overturned the government's classification of a Guantanamo Bay detainee as an enemy combatant. The court directed the military to release him, to transfer him or hold a new proceeding promptly. This type of legal process is authorized by Congress and the president to afford prisoners adequate due process, yet keep sensitive military matters out of the civilian court system. (As a matter of fact, this ruling contained classified military information, so a sanitized version is now being prepared for public release.)

Yet — and this really makes the Supreme Court look silly — the court also specified that the prisoner could petition a federal judge seeking his immediate release in light of the June 12 Supreme Court decision giving the right of habeas corpus to enemy combatants. (Which is what they did.)

In a 5-4 decision, the U.S. Supreme Court in Boumediene v. Bush held that foreign enemy combatants of the United States held at Guantanamo Bay had the same habeas corpus rights guaranteed to citizens of the United States. (This would mean that the Nazi SS or Schutzstaffel, would have been on a "legal par" with Americans during World War II.) Justice Anthony Kennedy was very frank, up front in saying, "It is true that before today the Court has never held that noncitizens detained by our government in territory over which another country maintains sovereignty have any rights under our Constitution." (Really? Only someone without a law degree would understand why they don't.)

This ruling is breathtaking. Chief Justice John Roberts reminds us it is well settled law that all available remedies should be exhausted before a petition to review is granted. This is the fundamental rule of judicial restraint. Two co-equal political branches (Congress and the president) created a two-part process in the Detainee Treatment Act of 2005 (DTA), which begins with a hearing before a Combatant Status Review Tribunal where the detainee has the opportunity to contest the government's determination that he is an enemy combatant. This "lower court" decision is followed by an appellate review by the Court of Appeals for the District of Columbia. Not too shabby a due process. It worked on June 23.

Roberts was right on the mark in criticizing the majority for not deferring resort to the writ "until other corrective procedures are shown to be futile... until the statutory remedies have been shown to be inadequate to protect the detainees' rights." Roberts was indeed prescient noting that the D.C. Appellate court is "where judicial review starts under Congress's system. The effect of the Court's decision is to add additional layers of ... redundant review." He was equally upset that foreign policy was being conducted "by unelected politically unaccountable judges."

The third co-equal judicial branch — our Supreme Court — inexplicably gave short shrift to this statute, which set up a process that this very same court had ruled in 2004 was constitutionally adequate in a case of an American citizen who was an enemy combatant — but not now in the case of an alien! Go figure. Talk about politics. (Guantanamo is a no-no.) In other words they are now affording non-citizens greater protection than citizens.

Justice Antonin Scalia was bewildered at a court that ignored the fact that "America is at war with radical Islamics." He minced no words concluding, "The Nation will live to regret what the Court has done today."

Scalia devoted considerable analysis to the World War II Supreme Court case, Johnson v. Eisentrager, where German prisoners of war, who were tried before military tribunals, sought writs of habeas corpus. The Court then held that the Constitution does not "ensure habeas for aliens held by the United States in areas over which our government is not sovereign." It sure sounds reasonable to me. But the Kennedy court effectively overruled its own decision, engaging in legal legerdemain to distinguish the cases.

In a telling aside on page 68 of the majority opinion, Kennedy observed, "Unlike the President and some designated members of Congress, neither members of this Court, nor most federal judges, begin the day with briefings that may describe new and serious threats to our nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who oppose a real danger to our security." Really? I think he's kidding, because they rule as though they are the foreign policy experts and "supreme" over our elected Congress and president. If Osama Bin Laden is ever captured, this court would permit him to seek habeas corpus in a civilian district court, just like an American, and then appeal to this very same court. Osama would probably retain Ramsey Clark, Saddam Hussein's lawyer, the left-wing activist, who was Democrat Lyndon Johnson's attorney general.

Kennedy also observed, as if to purposely distinguish the enemy at Gitmo from other prisoners of war, "none is a citizen of a nation now at war with the United States..." That is so irrelevant in this modern era of terrorism. (He admits that this court indeed does not get intelligence or military briefings — and is unaware of the transnational threat posed by radical jihadists.)

One cannot help but believe that these justices — like the traditional media, and intellectual cognoscenti — are "wannabe" legislators in black robes. CNN announced after Boumediene was handed down, "Major blow for Bush Administration." What about our Congress who wrote and passed this legislation? Are they orphans? And The Washington Post summed up the media's and Supreme Court's view nicely, "Supreme Court rules Bush can't trash American values."

Your values?

John Reiniers, a regular columnist for Hernando Today, lives in Spring Hill.

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