Immediately after the Supreme Court’s 5-4 Boumediene v. Bush decision, lawyers began work ultra vires (“beyond the powers” of law) creating the ‘due process’ for those who murdered 2,973 human beings on 9/11. I do not exaggerate. This was in the Washington Post Thursday evening:
U.S. District Judge Royce C. Lamberth, the chief judge of the federal court in Washington, said he is planning meetings with government and defense lawyers, and then the court’s judges, to decide how to handle the cases. “It remains to be seen exactly how this is going to develop, and what each side is going to do next,” Lamberth said.
The judiciary will create America’s laws if we let them. Congress can and must act this year according to former federal prosecutor Andrew McCarthy:
The most reprehensible aspect of the Boumediene ruling is thus Justice Kennedy’s diktat that all “questions regarding the legality of the detention [of combatants] are to be resolved in the first instance by the District Court” — as if Congress, the law writing branch of our government, had nothing to say about them.
Congress must ignore that brazen overstatement. Boumediene is a terrible decision, but all it means for the moment is that the jihadists held at Guantanamo Bay have been given the opportunity to press their cases — i.e., to seek their release from custody — in the federal district courts. The combatants have not been ordered released, and the narrow majority did not presume to prescribe a procedure for how the district courts should handle those cases.
THE WAY FORWARD
That is the job of Congress, and it must act now. Bear in mind, even in the civilian-justice system, where the judicial competence is generally undeniable, it is Congress that enacts rules of procedure and evidence. We do not leave judges free to make it up as they go along. How much less should we do so with respect to combatant detention — a war power as to which judges have no institutional competence?
There may not be time now for ambitious, comprehensive projects like sculpting a national-security court. Boumediene has produced a crisis that demands an immediate fix. But Congress could very quickly accomplish the more modest task of enacting rules and procedures for combatant habeas proceedings. In fact, there is already a model of sorts.
Long ago, our lawmakers enacted a statutory scheme to control pretrial detention in federal criminal cases. … READ THE REST
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