Bumble was right. The Law IS an ass.
Bumble, the officious, fat old soak of a beadle in Oliver Twist, proclaimed the law an ass for supposing that wives act under the direction of their husbands. A dodgy proposition even in 1838, the year the world first met the engaging Oliver. But since then legal asininity has been a steady growth industry. Bumble never saw the half of it.
Yesterday the al-Qaeda wing of the U.S. Supreme Court — the firm of Stevens, Ginsburg, Souter, Kennedy, and Breyer (Why can’t he stick to what he’s good at — making ice cream — instead of making hash of American law?) — perpetuated the latest outrage, once again creating faux-law out of left fantasies. And once again prompting Americans who are not lawyers (there are a few of us left) to ask: What the hell kind of questions are on the Bar Exam?
Thanks to lefties on the court, the latest way for foreigners to bring themselves under the umbrella of the U.S. Constitution, without the messiness and bother of trying to immigrate, or even trying to sneak across the border, is to attack U.S. forces on the field of battle. In a 5-4 decision that would have made the Queen of Hearts proud, the usual suspects decided that terrorists who engage American warriors on the field of battle are to be treated in much the same way as those accused of sticking up a liquor store in Newark.
Specifically, the prisoners at Club Gitmo, many of them the most vicious terrorists on the planet, now have access to American civilian courts, where they can challenge their incarcerations and, perhaps, eventually get sprung and return to the battle against the Great Satan.
Imagine if in 1944 Corporal Hostettler, captured at Bastogne during the Battle of the Bulge, had been entitled to Miranda rights and a paid public defender (a larval Alan Dershowitz, perhaps). What a dandy little mess that would have been. But 1944 was well before common sense was declared unconstitutional, so no much insane process was mandated.
In all of our previous wars, combatants who’ve engaged American fighting men on the battle field, and who were lucky enough to be captured rather than shot or somehow vaporized, were jugged for the duration. An eminently sensible approach that kept, say, Waffen SS soldiers captured on the battlefield from returning to the fray. The need for this in wartime would seem to be so obvious that even highly trained legal scholars could grasp it.
That war is categorically different from street crime would also seem to be crystal clear, at least to those not fretted with deep legal theory and leftist politics (increasingly indistinguishable, one from the other). Missing this obvious distinction altogether, Justice Kennedy, writing for the court, gave us this stunning non sequitur: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”
These are extraordinary times indeed when enemy combatants, in the current case hardened jihadists who’ve attempted to kill U.S. troops on the battlefield, are to be treated the same way as a teenage punk who tries to improve his cash flow with the aid of a ski-mask and a small-caliber handgun on an American city street.
As usual, Justice Antonin Scalia got it right in his dissent when he said the court’s decision “will make the war harder on us. It will almost certainly cause more Americans to die.”
Just so. Wonder if Stevens, et al., gave this a second’s thought? This is another thoroughly political decision that has nothing to do with law and will weaken America’s ability to resist its enemies. The five justices who saddled us with this abomination should be ashamed of themselves. But they almost certainly won’t be. It’s easier to teach an armadillo to make change than to shame a lefty.