Wednesday, June 30, 2004

Supreme Court Fallout

First, here's Andrew McCarthy on the mixed bag of results on the various detention cases the Supreme Court handed down Monday. Ultimately, however, the bag is not as mixed as perhaps the Wall Street Journal and even McCarthy himself would like to believe. Why? The Rasul decision on the Gitmo detainees -- it stood logic, precedent and statutory interpretation upon their respective heads. Here's McCarthy's view of the potential fallout:

Nevertheless, as manifested in Rasul, yesterday's case involving claims of foreign enemy combatants captured on faraway battlefields and held by the military in Guantanamo Bay, Cuba — an installation outside the jurisdiction of any U.S. court — the judiciary is no longer a neutral arbiter there to ensure that Americans get a fair shake from their government and its laws. Instead, it is evolving, or morphing, into a sort of United Nations with teeth. It has seized the mantle of international arbiter, ensuring that the world — including that part of it energetically trying to kill Americans — has a forum in which to press its case against the United States.

That last part is potentially disastrous. The notion that a foreign enemy combatant can have access to challenge US military decisions in US courts is both risible on its face and destructive of both the military's ability to carry out its operations and the Executive Branch's authority to conduct foreign affairs and protect the national security.

The Constitution enshrined civilian control over the military by establishing the President as Commander-in-Chief of the armed forces. It did not set the courts as controllers of the President or reviewers of the military's actions -- military actions instead are answerable to the President and Congress (power of the purse, control over the Uniform Code of Military Justice). The Supreme Court has more than blurred these lines, it has crossed them.

N.B. -- Professor John Yoo has a good op-ed in today's WSJ, but it's available on-line for subscribers only. Look for it on Opinion Journal this weekend.

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