Friday, June 30, 2006

The Corner Takes On The Latest Supreme Court Decision On Guantanamo

1. Justice Breyer's short concurring opinion maintains that all the court has really done is invite the president to seek legislation from congress authorizing the commissions and defining their structure. Several folks, me included, have argued from time to time that this is overdue anyway — we should have a national security court, created by congress to get many of the terrorism cases out of the regular criminal justice system. But that said, Justice Breyer's unfortunate invocation of the left-wing/civ-lib-extremist talking point, to wit, that "Congress has not issued the Executive a 'blank check,'" is bombast.

There has never been a moment since 9/11 when Congress, had it chosen to, could not have prescribed a new scheme for military commissions. The president's commission plan, well known since 2001, was fully permissible under existing statutory law and venerable court precedent. But Congress was not bound by it. It could have jumped into the breach at any point. In fact, it did jump in, enacting the Detainee Treatment Act in late 2005. By doing so, it demonstrated the obvious: if congress had been unhappy with the president's commission procedures, it would have modified them. Instead, it acted in a manner precisely designed to let the commissions go forward without court interference.

This was no blank check. Congress examined what the executive branch was doing, was fully satisfied, and acted to correct the only thing it found offensive — the judicial intrusion.

2. A big issue to watch out for as congress re-examines this: the protection of classified information from al Qaeda in the trial process.

One of the principal reasons for having commissions rather than courts-martial or civilian trials is to prevent our enemies from learning what we know and how we know it. But the court held that the president had not justified procedures which call, potentially, for excluding the terrorists from the courtroom when classified information is introduced.

Now, let's compare. Alien combatants have no constitutional rights; therefore, they have no constitutional right to be present at trial. On the other hand, protecting the security of the American people — which is what classified information is all about — is the number one obligation of government. So by what law does an al Qaeda killer's purported right to be present outweigh the American people's unquestioned right to have the government protect them (by, for example, not providing the enemy with sensitive intelligence)? "

This is shaping up pretty much as we've offered. Now it's time for Congress to stand up, be counted, and won't THAT be fun.

This year and into 2008, Republicans can use this Supreme Court decision as a line of demarkation.

Them versus us. WE want laws to protect the country from terrorists. There IS no homeland to repatriate them to, so we have to keep them incarcerated or they are back in the game of killing Americans once more.

BUT...they have NO rights. Not under the Geneva Conventions or Hague Accords, or the Uniform Code of Miltary Justice. To treat them as American citizens cheapens the Constitution by allowing such heinous criminals to be afforded the same protection under the law as law abiding Americans.

Our enemy should either be killed or locked away so as not to rejoin the attempt at destroying America.

Let the liberals run on a platform of mollycoddling Osama's boys. And if conservative office holders and officer seekers don't use this valuable ammunition against the leftwing nutcases who would aid and abet our enemy, then they deserve nothing from us.

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