All hail the imperial court.

In a bitterly divided 5-4 decision, the Supreme Court ruled Thursday in Boumediene v. Bush that alien enemy prisoners, waging a jihad against the American people and captured by our military in a war authorized by Congress, have a right — under our Constitution — to petition our courts for their release. So doing, the Court invalidated laws it had only recently implored Congress to enact, laws that provided these prisoners with generous protections never previously extended to enemy operatives in American history.

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Justice Anthony Kennedy, writing for Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, dictates that Americans must regard enemies as if they were mere criminal defendants, entitled to an exacting legal process — access to discovery, witnesses, counsel, etc. — that will, as a practical matter, make it impossible to detain them without shutting down interrogations prematurely and informing the enemy of our national-defense secrets.

There can be no justification for this stunning conclusion. Habeas corpus is the right to have the lawfulness of one’s detention tested before a judge. It is enshrined in the Suspension Clause (Art. I, Sec. 9) of the Constitution — the compact between the American people and the government they created — in order to protect Americans from arbitrary arrest and adhesive conditions of confinement. As a judicial remedy, it extends only where the federal courts have jurisdiction.

Thus, as Justice Scalia elaborated (joined in dissent by Chief Justice John Roberts, and Justices Clarence Thomas and Samuel Alito), habeas has never been thought to extend to the benefit of aliens outside the United States — much less those who are at war with the United States, and less still those who wage such a war by mass-murdering civilians, using women and children as human shields, and perpetrating other depravities that flout the laws of civilized warfare.

In 1950, the Supreme Court denied habeas corpus to alien enemy combatants in Johnson v. Eisentrager, a case involving German operatives captured in China and held in a zone of postwar Germany fully controlled by occupying American forces. Writing for a unanimous Court, Justice Robert Jackson observed that there had never in history been an

instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.

Eisentrager was binding precedent. In refusing to revisit what even supporters concede are badly flawed rulings that invented a right to kill the unborn, the liberal justices tell us they are constrained by binding precedent. Alas, precedent does not bind when the same liberal justices are bent on inventing rights for foreign jihadists.


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