Monday, June 16, 2008


How to Mitigate the Disgraceful Disaster that is the Boumediene Case

One of our strongest thinkers on how to fight properly the Muslim extremists who have been waging war against us for decades, Andrew McCarthy, over at National Review Online, has good advice, beautifully presented, on what our leaders need to do now. Money quotes:

Now the Court has decided that the combatants have constitutional habeas rights. If you can follow this, the bloc of liberal justices reasons that the framers designed our fundamental law to empower enemies of the American people to use the American people’s courts as a weapon to compel the American people’s commander-in-chief to justify his actions during a war overwhelmingly authorized by the American people’s elected representatives . . . even as those enemies continue killing Americans.

Disgraceful. The military can use tribunals for our citizens facing court martial, but for our enemies, who disobey nearly all of the rules of war and deserve only two to the back of the head, such tribunals are not good enough. Enough belly-aching, what is to be done?

Thus, Congress could quickly enact a statute requiring the district courts in combatant habeas cases to afford the commander-in-chief a presumption mandating detention. That is, if the government established a rational basis for believing the detainee was an enemy combatant, he would be ordered detained unless the detainee proved beyond a reasonable doubt that he was not an enemy combatant.

Congress could provide for the presentation of evidence by hearsay, proffer, and affidavit — with a directive that the court may not compel the government (particularly, the military and intelligence community) to produce witnesses for testimony in court. It could provide for classified intelligence to be presented to the judge ex parte, with only a non-classified summary provided to the combatant. It could require the court to give deference during wartime to the conclusion of combatant status review tribunals already conducted by the military (allowing judges to disregard those conclusions only upon a showing that the conclusion was irrational — the same standard that compels federal appeals courts, in every single civilian criminal case, to refrain from disturbing a trial court’s findings of fact).

To promote efficiency, since the issues in these cases are likely to be repetitive, Congress could also direct that all petitions be filed in the District of Columbia, with all appeals to the D.C. Circuit and, ultimately, the Supreme Court. Though I would prefer to see the cases directed to a specialized court, it is not practical to expect one could be designed in the short-term. We need a solution that can be implemented tomorrow.

As a solution to the Supreme Court's horrible mistake, this is about as good as it gets. I might skip the DC Circuit Appellate Court and make the Supreme Court hear every appeal from the District Court of every Jihadi asserting his innocence, but that's just because I'm probably more vindictive than Mr. McCarthy.


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