The Supreme Court and habeas corpus

 

Split 5-4, the U.S. Supreme Court recently handed down a decision about habeas corpus rights of enemy combatants that Sen. John McCain, R-Ariz., characterized as “one of the worst decisions in the history of this country.”  I agree and here’s why:

Henry Mark Holzer, professor emeritus at Brooklyn Law School, made the following points, among others, in an article titled, “The Supreme Court Wins, America Loses,” in which he notes,

• “…for the first time in our Nation’s history, the court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.”

• “…the majority (of the Court) dishonestly eviscerated its controlling precedent on habeas corpus.”

• “…habeas corpus was never intended to apply, and never did apply, to unlawful enemy combatants captured outside the United States.”

• “…the decision will severely compromise the military’s effectiveness in fighting terrorism.”

• “…the judicial usurpation of presidential war-powers has now become nearly complete.”

In his dissenting opinion, Chief Justice John Roberts said: “The majority rests its decision on abstract and hypothetical concerns.  Step back and consider what, in the real world, Congress and the Executive have actually granted aliens captured by our Armed forces overseas and found to be enemy combatants … This statutory scheme provides the combatants held at Guantanamo greater procedural protections than have ever been afforded alleged enemy detainees – whether citizens or aliens – in our national history.’” 

 

The chief justice also asked: “So who has won?”  Answering his own question, he comments:

• “Not the detainees”

• “Not Congress”

• “Not the Great Writ [of habeas corpus]”

• “Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants.

• “And certainly not the American people, who today lose a bit more control over the conduct of this nation’s foreign policy to unelected, politically unaccountable judges.”

 

John Yoo, writing in the Wall Street Journal, notes, “Judicial micromanagement will now intrude into the conduct of war.  Federal courts will jury-rig a process whose every rule second-guesses our soldiers and intelligence agents in the field.  A judge’s view on how much ‘proof’ is needed to find that a ‘suspect’ is a terrorist will become the standard applied on the battlefield.  Soldiers will have to gather ‘evidence,’ which will have to be safeguarded until a court hearing, take statements from ‘witnesses,’ and probably provide some kind of Miranda-style warning upon capture...”

 

This Supreme Court decision can only lead to more confusion and the intrusion of civil law procedures and processes into military matters. Anything that makes battlefield conditions more difficult for our troops is, by my definition, bad. It’s difficult to imagine our fighters stopping in the midst of an engagement to gather evidence and read prisoners their rights, assuming there is no language barrier.

I suspect that, in the heat of battle, U.S. troops may simply decide not to take prisoners. The unintended consequence of the Supreme Court’s decision may be fewer prisoners, or having other Coalition fighters, including Iraqi or Afghani troops, take the prisoners. 

The battlefield is not a court of law, and no matter how our judges try to alter the rules of engagement, they cannot change the very nature of war.