‘We don’t have to pass anything,” smirked Jerrold Nadler to
Newsweek. “Let the courts deal with it.”
The key House Democrat seems ever ready to lend a terrorist a helping hand. Just ask Susan Rosenberg, the Weather Underground bomber he helped convince Bill Clinton to commute her 60-year sentence. But now it’s our troops — who Democrats are forever saying they “support” — who need a helping hand. So here was Nadler, giving his usual thumbs-down to a Justice Department plea that Congress provide them, and the nation, with something other than the usual empty words.
The plea came on Monday. Attorney General Michael Mukasey gave
a major speech at the American Enterprise Institute. It was a thoughtful request that our lawmakers do their job in the wake of last month’s catastrophic Supreme Court ruling that granted alien enemy combatants a constitutional right to habeas corpus (i.e., to civilian federal court review of the military decision to detain them).
Justice Anthony Kennedy’s imperious majority opinion in
Boumediene v.
Bush ran roughshod over carefully crafted legislation by which Congress had balanced wartime security and due process. Such balancing, of course, is the legislature’s job. Yet, like Nadler, five of our esteemed justices — despite having asked Congress to pass the very laws they’ve just invalidated — decided the job is better done by politically unaccountable courts … the better to spare Nadler and his cohort from telling voters exactly what protections they’d lavish on the people trying to kill us.
The attorney general begs to differ. The justices ruled that detainees get judicial review, but, as he posits, they “stopped well short of detailing how the habeas corpus proceedings must be conducted.” Many significant questions remain open, and, Mukasey rightly insists, “it is well within the historic role and competence of Congress and the executive branch to attempt to resolve them.”
LAYING DOWN MARKERS The Justice Department has to live with the chaos caused by
Boumediene’s dumping of approximately 270 combatants on the district courts with no guidance about how the cases should be handled. Fans of Kennedy & Co. laughably point to this as a demonstration of the high Court’s restraint. But it is, in Justice Antonin Scalia’s apt dissenting phrase, “a pose of faux deference.”
The lack of guidance owes exactly to the majority’s breathtaking arrogance: gutting laws in which Congress had exercised its constitutional prerogative to remove the district courts from the consideration of detainee claims. Those laws, the attorney general noted, “gave more procedural protections than the United States — or any other country, for that matter — had ever before given to wartime captives, whether those captives were lawful soldiers in foreign armies, or unlawful combatants who target civilians and hide in civilian populations.”
In an effort to control the damage, Mukasey laid down several important markers.
Boumediene, he stressed, does not call into question the government’s
power to detain enemy combatants. The ruling is strictly about
process: The courts have carved out for themselves a role in scrutinizing the lawfulness of each individual detention, and what remains is to prescribe rules for those hearings.
Boumediene, moreover, dealt only with combatant
detention. The military-commission trial system endorsed by Congress for combatant
trials remains unchanged. For the moment, at least, the federal courts have
accepted this distinction drawn by the AG. That is why the first commission war-crimes trial (against Osama bin Laden’s confidant Salim Hamdan) is
currently proceeding at Guantanamo Bay.
More debatable, though, is Mukasey’s laudable effort to confine
Boumediene’s reach to Guantanamo Bay, rather than anywhere in the world where the United States detains prisoners. The Justice Department theorizes that it is the naval base’s unique circumstances (e.g., the in-perpetuity lease giving the U.S. exclusive control, though not sovereignty) which caused the Supreme Court to rationalize that it had jurisdiction to intervene.
It’s a plausible reading, but Justice Kennedy’s tropes convey a sweeping judicial usurpation. They reject the concept that court jurisdiction is limited to sovereign American territory. Kennedy’s analysis frets not just over captives at Gitmo but all detainees “abroad.” And his talismanic chanting of “separation-of-powers” — which now apparently means no powers are ever separate from judicial oversight — scarcely conceals the liberal bloc’s insatiable appetite. Kennedy’s parting shot is a haughty new doctrine: What “vindicate[s]” executive powers, even in the formerly political sphere of foreign affairs, is “confirm[ation] by the judicial branch” (formerly known as the non-political branch).
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