Imperial Judiciary Goes Global

Editorial - April 3rd, 2009 - National Review Online

In response to Rasul’s implausible claim that the federal habeas-corpus statute gave federal courts jurisdiction over Guantanamo Bay, lawmakers amended the statute to make clear that this was not the case. Not to be denied, the Court simply swept that legislation aside. In Boumediene, the justices claimed it was not just a statute but the Constitution — the compact between the American people and their government — that somehow vested alien enemies of the American people with a right to challenge, in the American people’s own courts, their detention by the American people’s military, during a war approved by the American people’s representatives.

Predictably, Judge Bates has taken the next step. He reasoned that if the font of federal court jurisdiction is not U.S. sovereignty but de facto U.S. control, the Bagram military base in Afghanistan, which we firmly control, is no different from Gitmo. There was, however, a major difference: Bagram is in an active zone of combat. This was a circumstance even the Boumediene majority suggested was entitled to special consideration. Bates gave it none. And if Boumediene commands that everyone within U.S. court jurisdiction is vested with U.S. constitutional rights, why shouldn’t a prisoner in Afghanistan have the same privileges as a prisoner in Gitmo? Or, by Bates’s logic, as a prisoner in Pittsburgh?

The result? Battlefields are now crime scenes, and the U.S. military will be forced to behave like a team of police investigators. If they want to capture enemy agents rather than kill them, our troops had better carefully rope off the crime scene, meticulously gather the physical evidence, record witness statements, administer Miranda warnings, and make certain a contingent of defense attorneys is available for interrogation purposes. That isn’t how wars are fought.

There was a time when the courts were thought to be a branch of the American people’s government, and when the United States went to war, the courts were part of the national war effort. Today the courts exist not within but above the government. Their goal is not American victory, but global due process.

The blatantly obvious indication is that our courts just became enemies of the people. If such, why should we not send our troops to detain (not arrest - just detain as enemies) all judges and send them to Gitmo? Or better yet Bagram? We certainly need to stop treating judges with deference or the respect accorded to a branch of the American government. No miranda warnings. No lawyers to defend them. If they want to be enemies, let them be enemies.