“Enemy Combatants May Challenge Captivity” sounds like a
satirical headline. It isn’t. The headline comes from the
Associated Press, reporting on the Supreme Court’s extension of
habeas corpus to Al Qaeda on Monday. Historians of the war on
terror should take note. While terrorists chopped off the heads of
Americans, America’s highest court was extending the Bill of Rights
to beheaders.
Justice John Paul Stevens writes that terrorist detainees at
Guantanamo Bay can pursue litigation under American law. The press
reports him saying that nothing in American law “excludes aliens
detained in military custody outside the United States from the
privilege of litigation in U.S. courts.” How will this work? Can
the U.S. government settle out of court with Al Qaeda’s lawyers?
Does it confer with them on document sharing during disclosure?
In the war on terror, the enemy turns to savage jihadists. The
West turns to softheaded judges. These judges will referee the war
on terror to ensure that the most bloodthirsty jihadists on earth
receive proper access to the ACLU. Embedded journalists are not
enough. Now we need embedded judges to guarantee war by judicial
review.
The ACLU hailed Monday’s Supreme Court ruling as “historic.” And
it is. A right to habeas corpus that Americans didn’t even enjoy in
the Civil War is now accorded Al Qaeda and other terrorist
organizations. This is all presented as “saving the Constitution.”
But habeas corpus for Al Qaeda is a very curious means of
preserving the Constitution — extending constitutional liberties
to terrorists who want to destroy constitutional liberties and the
country that upholds them.
Given the choice between suspending habeas corpus to save the
Constitution or losing the Constitution (from loss in war) to save
the enemy’s right to habeas corpus, the American left chooses the
latter. It doesn’t seem to occur to them that if their country
loses the war on terror they won’t have a Constitution to
defend.
Consider the left’s calls to release terrorists on what amount
to legal foot faults. The attitude seems to be that if America
doesn’t observe the Miranda rights of Al Qaeda, it should set its
terrorists free. The ACLU, for example, says that Jose Padilla,
nabbed for plotting attacks on America with Al Qaeda, should not be
regarded as an enemy combatant. Why? Because he is not one? No,
because he is a terrorist who had the good fortune to be born in
America and nabbed at an American airport. Monday’s ruling, says
the ACLU with high hopes, “may have strengthened Padilla’s legal
claim that, because he was arrested at O’Hare airport rather than
captured on the battlefield, he should not be subject at all to
detention as an enemy combatant.” Evidently Padilla has more rights
than a Civil War spy.
Yasr Esam Hamdi, captured fighting with the Taliban in
Afghanistan, was born in Louisiana. So the president can’t label
him an enemy combatant either, according to the Supreme Court. The
ACLU applauded the justices for going so far as to call for his
“immediate release.” Sandra Day O’Connor says that a “state of war
is not a blank check for the President when it comes to the rights
of the nation’s citizens.”
“Citizens” is a dignified name for terrorists like Padilla and
Hamdi who happened to be born in America. The Supreme Court has
provided Al Qaeda with an additional incentive to recruit traitors
in the U.S. They can recruit enemy combatants whom the courts will
treat as “citizens.”
The fanatics we face know that liberalism can be invoked at will
to advance their illiberal designs. In the hearings leading up to
Monday’s rulings, there was the spectacle of lawyers for
terrorists, caught launching a jihad on the west, using the
documents of Western civilization to try and get their clients off.
Stephen Breyer rebuked the government’s lawyer with citations from
the Magna Carta. Hamdi’s lawyer, Frank Dunham, argued that George
Bush can’t be trusted. “When you take his argument at core, it is
‘Trust us,’” the press reported him saying. “We have this great
writ (habeas corpus) because we didn’t trust the executive branch
when we founded this government.”
Habeas corpus for traitors and terrorists in wartime did not
spring from the minds of George Washington and Abraham Lincoln but
from the radicals at the ACLU. “Enemy Combatants May Challenge
Captivity” is a surreal headline only possible in a war influenced
by liberals utterly unserious about winning it.
