Boumediene v. Bush

9/11, Boumediene v. Bush

After Boumediene v. Bush, Congress must act this year

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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

9/11, al Qaeda, al-Ajmi, Boumediene v. Bush, Debra Burlingame, Guantanamo, Lawfare

Debra Burlingame: Boumediene v. Bush a Strategic Victory for al Qaeda

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Today’s Supreme Court decision, Boumediene v. Bush, is a huge victory for terrorists and a step backward in the war against radical Islamists. If 9/11 taught us anything, it is that the criminal justice system is not capable of preventing catastrophic terrorists attacks — nor is it designed to be. Never in the history of American jurisprudence have we given full Constitutional rights to terrorists captured anywhere in the world who commit atrocities on civilians.

The lawyers who are championing the rights of terrorists should tell the public what this decision really means. It means that terrorists will be entitled to Miranda rights, to legal representation and the right to remain silent. And they will. When Khalid Sheikh Mohammed, the mastermind of 9/11, was handed over to the U.S. after his capture in Karachi in 2003, he taunted his interrogators with this, “I’ll talk to you guys in New York when I see my lawyer.” But they won’t tell the public, they will continue to talk about preserving the rights of people who would behead journalists, blow up children and fly commercial airliners into buildings, as if those acts are an abstraction. What this decision ultimately means is that the vital intelligence we need to prevent future attacks — the kind of intelligence we didn’t have on September 10, 2001 — will dry up. We will be left reacting to these attacks after the fact — just as we did in the ten years prior to the murder of 3,000 of our fellow human beings.

Something else the lawyers won’t tell the public. Dealing with terrorists in the criminal justice system means that only the most clear-cut cases will result in convictions. Terrorists like Mohammed Atta, Hani Hanjour, Ziad Jarrah and Marwan al-Shehhi, the men who piloted those planes into the WTC, the Pentagon and the ground on 9/11 would have stood a very good chance of acquittal if they were captured in an Al Qaeda training camp in the summer of 2001. The burden of proof in the civil criminal system — beyond a reasonable doubt — is extraordinarily high. Their lawyers back then would have argued that that they have no criminal history, had committed no hostile acts against the U.S. governmnent and in fact were simply religious Muslims doing charity work on holiday, the very claims Gitmo lawyers made about Abdullah Al-Ajmi and hundreds of other detainees. Al-Ajmi was released from Guantanamo in 2005. In April, he blew himself up in Iraq, killing 7 Iraqi security forces and maiming 28 others.

Justice Scalia is right that today’s opinion will result in the death of Americans. His words remind me of the beleaguered FBI agent, Harry Sammit, who pleaded with his superiors at FBI headquarters to be allowed to launch a nationwide manhunt for Khalid al-Mihdhar and Nawaf Al-Hazmi, two of the hijackers on my brother’s plane, 3 weeks before 9/11. He was turned down by the lawyers in the National Security Law Unit of the FBI, who cited the FISA law that prevented this intelligence information from being used by the criminal division. The point of that law — known as “the wall” — was CIVIL LIBERTIES protection for the terrorists who were the object of that never-launched manhunt, should they ever be caught and brought to trial. Sammit wrote in an email, on Aug. 31, 2001:

“Someday someone will die…and the public will not understand why we were not more effective and throwing everything we had at certain problems. Let’s hope [the lawyers] will stand behind their decisions then, expecially since the biggest threat to us now, [bin laden], is getting the most protection.”

The media can call this a “defeat for the Bush administration,” but it is not. It is a defeat for the American people. And, God help us, when the next catastrophic attack occurs under the next American president’s watch, who will the media blame then? They won’t be thinking about President Bush. The families of those who are dead will be able to draw a straight, clear line right to the steps of their own U.S. Supreme Court.

[Editor — View and save a copy of the entire decision by clicking here (pdf).]