"The Nation Will Live to Regret What The Court Has Done This Day"

...so says Justice Antonin Scalia

Amidst the awful news today coming out of Oklahoma, where two little girls were randomly and mercilessly shot to death and the killer(s) remain at large, and Iowa, where four young boys died when a tornado hit at Boy Scout camp, there's this:

Guantanamo detainees have habeas corpus rights.

What does this mean? Well, I am by no means a criminal law specialist, just a connoisseur, but here's the nutshell version. A writ of habeas corpus (literally "to have the body" of a prisoner, remember "Habemus Papam?") allows a prisoner the right to challenge the authority of a warden to continue to hold him on the grounds that his confinement is illegal, inasmuch as he had ineffective assistance of counsel at the time of trial. (A bit different than an appeal, which challenges the judge's conduct of the trial and his rulings from the bench).

He submits the writ to a judge, who reads it and either denies it or orders a hearing, at which time the prisoner can argue that his confinement is unconstitutional, cruel and unusual, etc. It is a device used to challenge the death penalty on constitutional grounds, as well as appeals.

So...

The Al Qaeda detainees being held in Cuba at GTMO, who were captured on the battlefields of Afghanistan and Iraq while actively engaged in terrorist activities calculated to kill American, British, and all coalition troops, not to mention any and all citizens of those countries who dared to oppose them, now have the right to petition the Federal Courts of the United States of America for release, despite the fact that they have never set foot on American soil.

Previously, such matters would be subject to decision before a military tribunal - cases stretching back to the Nuremberg trials confirm that foreign enemy combatants engaged in wartime activities against Americans and detained outside this country did not have habeas corpus rights, (i.e., Nazis who escaped after Germany's surrender and were subsequently captured in China helping the Japanese fight the Allies.) When the GTMO situation arose after 9/11, Congress passed legislation to allow these alien detainees to be tried before military tribunals, invoking the constitutional right to deny or "suspend" habeas corpus rights in times of war (the "Suspension Clause" - see below), and the President and Commander in Chief signed Congress' bill into law. Years later, the judicial branch is usurping the painstaking research, debate, and centuries of history that went into crafting and passing the law.

So essentially, our courts and taxpayer dollars will fund these evil bastards' attempts to be freed, and they will be entitled to free counsel provided by the very nation they have vowed to destroy.

Entire opinion here, (Boudemiene v. Bush 553 U.S. ___ ) but below are some highlights from the blistering dissenting opinions of Chief Justice Roberts and Justice Antonin Scalia (my legal idol). This is longish, but worth sticking around to read.

We begin with a brief review of HISTORICAL FACT:

America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. See National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, pp. 60–61, 70, 190 (2004). On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania. See id., at 552, n. 9. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed.

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-- Justice Antonin Scalia

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The Suspension Clause reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U. S. Const., Art. I, §9, cl. 2.

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-- Justice Antonin Scalia

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[I think it's safe to say our nation is in such a situation at present - KB]

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Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.

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-- Chief Justice John Roberts

What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

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-- Justice Antonin Scalia

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...[t]he decision is devastating.At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield....Some have been captured or killed.... But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes... Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers... Still another murdered an Afghan judge...It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq...These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection.

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-- Justice Antonin Scalia

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The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

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-- Justice Antonin Scalia

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Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause.

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-- Justice Antonin Scalia

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(What he means by this, chillingly, is that the Court opened a Pandora's box today - now OTHER of our nation's Constitutional rights and protections, by analogy, can be conferred upon foreign nationals...and trust me, they will be. - KB)

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The Nation will live to regret what the Court has done
today. I dissent.

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Me too, Mr. Justice Scalia. Me too.