Lawfare

Rivkin and Casey: habeas would bring judges to the battlefield

In this morning’s Wall Street Journal (OpinionJournal.com), David B. Rivkin Jr. and Lee A. Casey explain the detrimental effects granting detainees habeas review would have upon America’s ability to fight:

The [Military Commissions Act] established a system of military tribunals to try the Guantanamo detainees, again with appeals to the U.S. Court of Appeals in Washington, D.C., and the Supreme Court. The law also stated with remarkable clarity that these procedures excluded all other judicial review for detainee claims, past, present and future. As one judge wrote in dismissing Mr. Boumedienne’s case after the MCA was enacted — “it is almost as if the [congressional] proponents of these words were slamming their fists on the table shouting ‘When we say ‘all,’ we mean all — without exception.'”

Last April, the Supreme Court appeared to agree, refusing to revive the appeals. Unfortunately, it changed its mind in June, agreeing to consider whether Congress can constitutionally refuse the Guantanamo detainees — who are not U.S. citizens or held on U.S. territory — access to habeas corpus rights. This is not a close question. When the framers adopted the Constitution to “secure the Blessings of Liberty to ourselves and our Posterity” they were not talking about enemy aliens overseas engaged in a war against the republic they founded.

That, certainly, was the Supreme Court’s conclusion in Johnson v. Eisentrager (1950), which involved similar claims by Germans arrested by U.S. forces in China, and then imprisoned in occupied Germany. Their habeas claims were rightly rebuffed.

As Justice Robert Jackson wrote for the court, “Such extraterritorial application of organic law [the Constitution] would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment.” Such a rule would, indeed, have been bizarre — handicapping the U.S. in its foreign relations and putting it at a permanent disadvantage compared to every other country on earth.

That was true in 1950, and it remains true today. To grant constitutional rights to the Guantanamo detainees, the Supreme Court must ignore its own settled precedent — on which the president and Congress were entitled to rely — and rewrite the Constitution itself.

The consequences would be disastrous. Such a decision would bring judges to the battlefield. As Justice Jackson warned, permitting foreign enemies to haul American officials into court “would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.”

Granting habeas corpus rights to terrorists plays right into their hands. Our commanders and intelligence services would have to reveal the details of the operations and intelligence that resulted in a detainee’s capture whether we prosecuted them or not.

Why would we attempt to take prisoners or accept the surrender of unlawful combatants when they will just remain silent and lawyer up? What individual or foreign nation will provide intelligence about terrorists to the United States knowing that later the source of the information will be revealed?