War by Judicial Review - The American Spectator | USA News and Politics
War by Judicial Review

“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.

George Neumayr
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George Neumayr, a senior editor at The American Spectator, is author most recently of The Biden Deception: Moderate, Opportunist, or the Democrats' Crypto-Socialist?
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