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Justices Violate Separation Of Powers

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By JOHN HERBERT

From Where I Sit

Published: June 24, 2008

Someone forgot to tell the U.S. Supreme Court that we're at war. Wonder if the justices read the papers or even watch the news on TV?
The Supremes recently ruled that American legal rights should apply to non-American -- repeat, non-American -- enemy combatants imprisoned at the U.S.-leased Guantanamo Bay base in Cuba. It's the first time American constitutional rights have been awarded to alien fighters abroad.
It may mark a great victory for the American Civil Liberties Union (ACLU) but it's a dark day for anyone who fathoms that military realities should supersede Supreme Court policymaking. As a justice pointed out 60 years ago, "the Constitution is not a suicide pact."
At issue, specifically, is whether non-American terrorist prisoners have access to "habeus corpus," or the right to be released from prison if legal justification for their confinement can't be quickly produced. The justices say these locked-up terrorists should have that right, sooner rather than later.
Never before has habeus corpus covered enemy combatants jailed overseas. Some 270 enemy combatants are locked up at Guantanamo Bay, a.k.a. "Gitmo," offshore U.S. territory. Now, thanks to the Supremes, any enemy combatant in an American prison anywhere in the world can claim the right to habeus corpus.
Habeus corpus has been suspended twice before when America has been faced with "rebellion" or "invasion" as defined by the U.S. Constitution, by President Abraham Lincoln in the Civil War and by President Franklin D. Roosevelt in World War II.
Neither president faced legal hassles similar to what the Supremes have now pronounced. So much for legal precedent.
Furthermore, we didn't have anything close to the skyscrapers, jetliners or radical Islamists of 9/11 either 70 or 150 years ago.
Say what you want about President Bush, but he's been consistent in describing the war on terrorism. It's a new kind of war, he's said repeatedly, which the framers of the American Constitution couldn't have envisioned. You don't go giving away Constitutional rights to foreign belligerents.
Radical Islamists are not your traditional enemy in uniform. They don't, and won't, follow the conventions of war (who does, really, except American liberals?), and we may be engaged in the terrorist struggle for generations.
Some of the worst terrorist suspects have been detained at Gitmo rather than in jails on U.S. soil hopefully to deny them access to American legal rights. Sounds fair enough? After all, the radicals have sworn to kill Americans, eliminate our religions and abolish our lifestyles.
Gitmo prisoners have been released, only to return to new bloody battlefields in the Middle East. One Gitmo alumnus recently became a suicide bomber and killed dozens of innocent civilians in Mosul, Iraq. Earlier this month, suicide bombers were used to free some 1,100 terrorists from jail in Afghanistan. Would we prefer to have them hiding out in Florida swamps?
At Gitmo, favorite combatant-prisoner tricks include pouring urine cocktails and sprinkling them over their American guards. And flinging human feces like snowballs. Plus head-butting, biting and kicking the guards.
In return, American taxpayers give each of the terrorists his own Koran, arrows pointing to Mecca, room service meals and world-class health care we can't even afford here at home. Do these incorrigibles sound like individuals worthy of protection by the U.S. Supreme Court?
What are the unelected Supreme Court justices doing dabbling in lawmaking, anyway? Haven't we got a government executive branch as well as a Congress for that? The Constitution calls for a separation of powers the Supremes have conveniently ignored in the habeus corpus case.
Just when the Supreme Court loosens the rules on habeus corpus, some of our main allies are tightening their control of foreign terrorists. Germany, for example, seeks to give its federal police the very same wiretapping rights challenged by American liberals. Great Britain wants to extend from 28 to 42 days the time terrorism suspects can be held without charges. It's just 48 hours in the U.S.
If there's something positive in the Supreme Court's favoring of non-American enemy combatants, it should dismiss once and for all that myth of popular (liberal) culture that the Supreme Court is top-heavy in right-wing conservative judges.

A regular columnist for Hernando Today, John Herbert lives in Spring Hill.

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