We'll regret judges on the battlefield v.supreme court decision

6SpeedTA95 · 06-22-2008, 04:23 PM

We'll Rue Having Judges on the Battlefield
By ANDREW MCBRIDE
June 21, 2008; Page A7

The Supreme Court's decision in Boumediene v. Bush is being hailed in many quarters as a great victory for civil rights and the rule of law. It is not. In fact, it is a watershed in judicial hubris, and in the continuing trend in our society to convert every form of decision making into a lawsuit.

For the first time in our history, the Supreme Court has rejected the considered judgment of both the Congress and the president on an issue of national security. The writ of habeas corpus, a bulwark of domestic liberty, has been extended to foreign nationals whose only connection to the U.S. is their capture by our military.

Justice Kennedy's majority opinion confuses the civilian criminal justice system and the waging of war. The Constitution as interpreted by the Supreme Court places many roadblocks in the path of a conviction for a crime, and for the loss of liberty, or even life, that may follow. The guarantee of counsel, the right to subpoena witnesses and confront adverse witnesses in open court, and the suppression of evidence gathered in violation of law, all make sense in the context of domestic law enforcement. To protect liberty, we are willing to sacrifice some efficiency in our criminal justice system. Our motto remains: Let 100 guilty men go free before one innocent man is convicted.

The situation is entirely different when the nation faces an external threat. In fighting an enemy, there is no reason for the judicial branch to "check" the political branches. The idea of our judiciary protecting the "rights" of the Nazis or the Viet Cong from executive overreaching is every bit as absurd as it sounds. But had Boumediene been decided in 1940, more than 400,000 Axis troops held in more than 500 military facilities in this country during World War II would have had a right to challenge their detention in federal court.

The judiciary is not competent to make judgments about who is or is not an enemy combatant or, more generally, a threat to the U.S. The imposition of the civilian criminal justice model on decisions regarding potentially hostile aliens raises a host of questions which the Court does not even attempt to answer in Boumediene.

Must military personnel take notes in the field regarding the location, dress, and comportment of captives for later use in the "trials" mandated by the Supreme Court? Must a chain of custody be preserved on a firearm or bomb seized from an enemy combatant? Can a detainee file a writ for habeas corpus immediately upon arriving at a U.S. military base like Guantanamo Bay?

The Boumediene majority usurps decisions that should be made by the military, but answers none of these questions. In fact, judgments regarding the detention or trial of enemies require training, experience, access to and understanding of intelligence. They cannot be reduced to a particular standard of proof in a courtroom setting. The military has made mistakes at Guantanamo, among them releasing some detainees who have returned to attack American troops in Afghanistan or Iraq. God help us if the judiciary makes such a mistake and releases the next Mohammad Atta into our midst.

Mr. McBride is a former federal prosecutor and worked in the Justice Department in the administration of President George H.W. Bush, where he was responsible for national security matters.

Pretty interesting piece. He makes some excellent points about extending the US constitution to enemies of war, non citizens and non residents of the US. I thought this was well written and this guy has made some excellent points regarding this latest and controversial supreme court decision.

WickedLou9 · 06-22-2008, 07:29 PM

This is just my opinion but I think that anyone that we bring into our own justice system should be granted all of the rights that someone in this country would get.If you kill 17 kids and a nun in the US, you still get your rights. If we want to tell other countries that they need to improve thier record on civil rights, we should be the example. right now we are in a pretty bad position. We criticize China and then torture our prisoners of war. we have no credibility. If we hope to return to a place of respect in the world community this court ruling is a good start.

6SpeedTA95 · 06-22-2008, 08:26 PM

Originally Posted by WickedLou9

This is just my opinion but I think that anyone that we bring into our own justice system should be granted all of the rights that someone in this country would get.If you kill 17 kids and a nun in the US, you still get your rights. If we want to tell other countries that they need to improve thier record on civil rights, we should be the example. right now we are in a pretty bad position. We criticize China and then torture our prisoners of war. we have no credibility. If we hope to return to a place of respect in the world community this court ruling is a good start.

You're talking about civil crimes not war crimes and acts of war.

Rouger2 · 06-22-2008, 10:22 PM

Have those guys at guantanamo even been to a milatary court. Set up a court and give them a trial this just keeping them prisoners makes everyone wonder. We're America give them a trial.

6SpeedTA95 · 06-22-2008, 10:24 PM

Originally Posted by Rouger2

Have those guys at guantanamo even been to a milatary court. Set up a court and give them a trial this just keeping them prisoners makes everyone wonder. We're America give them a trial.

I agree.

7960 · 06-22-2008, 10:25 PM

I remember my father a long time ago saying something about "we all in trouble when the military consults their lawyers before attacking."

Now I have a better understanding of what he meant.

C4Casey · 06-22-2008, 11:02 PM

The Constitution begins with "WE THE PEOPLE OF THE UNITED STATES". Correct me if I'm wrong, but I believe these 7 words are, impart, intended to articulate that the following document applies to citizens of the United States. Defending the rights of people who not only are non-citizens, but also openly hostile to U.S citizens, is downright absurd. I think that the people on the Supreme Court are employed by the People of the United States, and their primary job is to protect the rights of said people. Umong those rights is the right to life. This decision could directly endanger American citizens by providing an easier avenue for enemy combatants to regain freedom and rejoin the fight. I consider this decision by the Supreme Court to be border-line treason.

7960 · 06-22-2008, 11:07 PM

Originally Posted by C4Casey

The Constitution begins with "WE THE PEOPLE OF THE UNITED STATES". Correct me if I'm wrong, but I believe these 7 words are, impart, intended to articulate that the following document applies to citizens of the United States. Defending the rights of people who not only are non-citizens, but also openly hostile to U.S citizens, is downright absurd. I think that the people on the Supreme Court are employed by the People of the United States, and their primary job is to protect the rights of said people.

Wrong. Their job is to make sure the constitution doesn't get shit on. They shouldn't care about "protecting the rights of the people."

Umong those rights is the right to life. This decision could directly endanger American citizens by providing an easier avenue for enemy combatants to regain freedom and rejoin the fight. I consider this decision by the Supreme Court to be border-line treason.

I'm glad you didn't take this opportunity to be melodramatic about the situation.

/sarcsasm

Kytro · 06-22-2008, 11:23 PM

Originally Posted by 6SpeedTA95

You're talking about civil crimes not war crimes and acts of war.

Terrorists are criminals, there is no war to speak of.

Scrum · 06-23-2008, 12:14 AM

Originally Posted by 6SpeedTA95

You're talking about civil crimes not war crimes and acts of war.

What country are we at war with?

thewise1 · 06-23-2008, 12:45 PM

Originally Posted by C4Casey

The Constitution begins with "WE THE PEOPLE OF THE UNITED STATES". Correct me if I'm wrong, but I believe these 7 words are, impart, intended to articulate that the following document applies to citizens of the United States. Defending the rights of people who not only are non-citizens, but also openly hostile to U.S citizens, is downright absurd. I think that the people on the Supreme Court are employed by the People of the United States, and their primary job is to protect the rights of said people. Umong those rights is the right to life. This decision could directly endanger American citizens by providing an easier avenue for enemy combatants to regain freedom and rejoin the fight. I consider this decision by the Supreme Court to be border-line treason.

I will go ahead and correct you, then.

Context is everything.

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

So, we the people have ordained and established this Constitution.

Now the Constitution describes many of the processes and limitations of power for the federal government, and in the document itself it does outline what the federal government is allowed to do.

I do believe that the intention of this was to provide an explicit list of functions it is allowed to do - to limit its size, of course.

Now if you move on to the amendments, you will find that none of them grant rights to any group of people. In fact, the first 10 amendments only create rules disallowing the federal government the ability to violate inherent, innate, God given rights.

Look at them:

1 - Congress shall make no law....
2 - ...shall not be infringed.
3 - No soldier shall, ..., but in a manner to be prescribed by law.
4 - The right of the people to be secure.... shall not be violated, and no warrants shall issue, ....
5 - No person shall be held to answer....

I can go on but you get the idea.

The Constitution does not grant rights. We already had the rights, it just prevents the government from infringing on them.

Kytro · 06-23-2008, 05:53 PM

Originally Posted by thewise1

The Constitution does not grant rights. We already had the rights, it just prevents the government from infringing on them.

While I do not agree with the existence of inherent rights (rights are a human construct and only exist because we decided they did), I do agree the constitution stipulates limitations for the federal government.

thewise1 · 06-23-2008, 06:05 PM

Originally Posted by Kytro

While I do not agree with the existence of inherent rights (rights are a human construct and only exist because we decided they did), I do agree the constitution stipulates limitations for the federal government.

Well, here we hold these truths to be self evident, etc etc etc etc