Last week in our discussion on the separation of rights and privileges as pertaining to the differences between U.S. citizens and illegal aliens, we stated:

“At some point in the future the Supreme Court will rule that those terrorists are protected by the same laws and standings which are supposedly reserved for citizens of the United States…”.

After further reading in Mark R. Levin’s incomparable book, Men In Black, we have discovered that the Supreme Court has already ruled on the issue of the “enemy combatants” and their legal status. This discovery has taken us a little by surprise, because we make a concerted effort to keep up with current events, especially concerning judicial activism, but somehow we missed this one.

So the proposition then comes to mind, if we missed this one, perhaps the majority of the public missed it as well.

We will give reference to the cases, quote some of the rulings, and allow you to determine whether they were in accordance with the Constitution of the United States, and the historical laws of war.

The pertinent cases for this discussion are, Rasul v. Bush, and Hamdi v. Rumsfeld.

In Hamdi, the case involved an individual who was a citizen caught on the battlefield in Afghanistan, and held as a detainee. The court ruled:

“We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.”

In Rasul, they extended the above to foreign enemy combatants. Justice Stevens wrote:

“the writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody,” a district court acts “within [its] respective jurisdiction” within the meaning of §2241 as long as “the custodian can be reached by service of process.”

Justice Thomas in writing the dissent on Hamdi, wrote the following:

“Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive. I cannot improve on Justice Jackson’s words, speaking for the Court:

“The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.”

Justice Scalia for the dissent in Rasul, wrote the following:

“The consequence of this holding, as applied to aliens outside the country, is breathtaking. It permits an alien captured in a foreign theater of active combat to bring a §2241 petition against the Secretary of Defense. Over the course of the last century, the United States has held millions of alien prisoners abroad. See, e.g., Department of Army, G. Lewis & J. Mewha, History of Prisoner of War Utilization by the United States Army 1776-1945, Pamphlet No. 20-213, p. 244 (1955) (noting that, “[b]y the end of hostilities [in World War II], U. S. forces had in custody approximately two million enemy soldiers”). A great many of these prisoners would no doubt have complained about the circumstances of their capture and the terms of their confinement. The military is currently detaining over 600 prisoners at Guantanamo Bay alone; each detainee undoubtedly has complaints–real or contrived–about those terms and circumstances. The Court’s unheralded expansion of federal-court jurisdiction is not even mitigated by a comforting assurance that the legion of ensuing claims will be easily resolved on the merits. To the contrary, the Court says that the “[p]etitioners’ allegations . . . unquestionably describe ‘custody in violation of the Constitution or laws or treaties of the United States.’ ” Ante, at 15, n. 15 (citing United States v. Verdugo-Urquidez, 494 U. S. 259, 277-278 (1990) (Kennedy, J., concurring)). From this point forward, federal courts will entertain petitions from these prisoners, and others like them around the world, challenging actions and events far away, and forcing the courts to oversee one aspect of the Executive’s conduct of a foreign war.”

Robert Alt wrote concerning these decisions in the National Review Online in an article entitled, Dangerous Decision. He concluded his article by stating the following:

“I’ve come to loathe late June — a time which signals the end of the Supreme Court’s term — for it is at this time that we as a nation are forced to learn of the “growth” of certain members of the bench. There are many hypothesized reasons for this growth — a euphemism used to describe the gradual shift to the left by the would-be “swing” Justices. Perhaps some of them are attempting to build a legacy, or are seeking the accolades of liberal academia or the esteem of the press. Whatever the reason, in this most recent round of cases the United States Supreme Court quite simply announced itself as legislator to the nation and tribunal to the world by rewriting a well-established statute and opening the courthouse doors to terrorists from every corner of the globe.”

Andrew C. McCarthy also writing concerning these cases in the National Review Online in an article entitled, A Mixed Bag, stated this:

“…when our military fighting overseas, at the height of active hostilities, grants quarter by apprehending rather than destroying the forces arrayed against it, those forces, those alien enemies trying to kill Americans — alien enemies who secrete themselves among civilians; who use humanitarian infrastructure like ambulances, hospitals and schools to carry out their grisly business; who make a mockery of the laws and conventions of civilized warfare; who torture and kill their captives with a bestiality that defies description; whose only contact with America is to regard her with this savagery — have resort to the courts of the United States to protest their detention and to compel the executive branch, while it is conducting battle, to explain itself. Just to describe this breathtaking claim of entitlement should be to refute it. Yet, the United States Supreme Court has ruled in favor of the enemy.”

After reviewing the cases above, it now begins to make sense why the liberal Democrats, and the Liberal MSM have become so emboldened as to make statements such as Senator Durbin’s last week. These extremists, and for the purposes of this writing the majority of the Democrat Party are extremists as is evidenced by the extremely small number of Democrats who actually spoke out against Senator Durbin’s remarks. Until the more moderate members of the Democrat Party decide to disassociate themselves with the far left, they have by their silence identified themselves as a part of the liberal extremists.

So now that the Supreme Court rulings have had some exposure, and in light of what has been said and written in the past ninety days, hasn’t it become apparent that there is an all out effort to damage the Bush Administration, and destroy our war efforts in Iraq? We must also ask whether we want more Justices like Thomas and Scalia, or more like Stevens and Kennedy?

We can do no better in finishing today by quoting from Levin’s book above:

“It is difficult to win a war when the enemy is armed not only with rifles and rocket propelled grenades, but also with subpoenas, affidavits, and lawyers. And it’s difficult to maintain a republic when the judiciary abuses its constitutional authority. These cases illustrate perhaps more than any others just how dangerous and reckless an unbridled judiciary can be, not only to the Constitution, but to our national security.” (page 129)

Our thanks to Mark R. Levin for writing his book, Men In Black, and for the powerful insight and education it has given the public into the activism of today’s Supreme Court. Our thanks also go out to our Men and Women who are fighting to keep us safe in spite of the rulings of this Court, which have made their job many times harder.

Please read the above cases, and the articles linked above, and decide for yourself. If you come to the conclusion we have, get involved in the process that will soon be upon us. There will be a vacancy on the Supreme Court soon. Help us get a strict constitutional constructionist nominated by the President, and an up or down vote in the Senate.

This entry was posted on Saturday, June 25th, 2005 at 4:20 pm and is filed under Saturday Evening Judicial Review Post. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.

Tags: enemy combatants, Rasul v. Bush, Hamdi v. Rumsfeld, Supreme Court