Ignore the Court

Thursday’s Supreme Court ruling in the consolidated cases of Boumediene v. Bush and Al-Odah v. United States for the first time grants foreign-born enemy combatants of the United States, captured on the battlefield in the process of planning or participating in attacks against U.S. targets, the right to challenge the circumstances of their detention in federal court. It is difficult to overestimate the impact that this ruling will have on the prosecution of the war on terror and, indeed, all future armed conflicts. The specter of American troops Mirandizing enemy combatants on the battlefield, or being called back from the front to testify in civilian court about the manner that a prisoner was captured, and the practical impossibility each of those outcomes would present to the U.S. military, should trouble every American who is concerned about the nation’s safety.

President Bush, reacting almost immediately to the Court’s decision, said that his Administration, “would abide,” with the ruling, adding, “That doesn’t mean I have to agree with it.” He spoke too soon, and did not go far enough. For the reasons cited above, and others, he should ignore this decision of the Court, and continue to apply the Military Commissions Act of 2006 as duly passed into law by Congress.

The unpleasant fact overlooked by Justice Anthony Kennedy and the four justices who signed on to his majority opinion, is that in ruling the military tribunals set up by the Military Commissions Act to be unconstitutional, the Court itself committed an unconstitutional act. Congress, acting under its Article III power to regulate the judicial branch, stripped the Supreme Court of the jurisdiction to hear habeas corpus petitions from detainees in the custody of the United States when it passed and the president signed the Military Commissions Act. The act specifically states:

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. (2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005.

The Detainee Treatment Act vests the authority to hear habeas petitions in the U.S. Circuit Court of Appeals for the District of Columbia, not the Supreme Court. The very act of taking the cases constitutes a usurpation of Congress’s Constitutional powers, as well as a violation of U.S. law, by the Supreme Court. The ruling itself, of course, is a gross attempt to regulate the conduct of the Executive Branch in wartime by the Judiciary and has no basis in the Constitution.

Not since the Civil War has a president defied a ruling of the Supreme Court, when President Abraham Lincoln ignored a ruling that his suspension of the writ of habeas corpus was unconstitutional. Lincoln continued to hold persons deemed to be enemies of the Union. Like the Supreme Court, the Executive and Legislative Branches of government have a responsibility to interpret the Constitution. Lincoln, exercising his interpretation both of the needs of the war effort and the law, concluded that preserving the Union necessitated the temporary suspension of the writ. President Bush can and should make the same determination.

Should the president make such a decision, he would not be going nearly as far as Lincoln did. The president would be refusing to apply habeas rights to foreign-born enemy combatants, whereas Lincoln jailed American citizens. The president would be on firm legal ground in making this determination. He has inherent Article II powers to direct the military as commander-in-chief of the armed forces, and he would be upholding a duly passed law against a rogue Court overstepping its authority. Furthermore, since Congress expressly authorized the D.C. Circuit to rule on the status of the detainees at Guantanamo Bay, and that court ruled that the tribunals were indeed legal, President Bush can argue that he is upholding the decision of the highest court authorized to rule on the matter.

Americans understand that the proper role of the judiciary is to interpret the laws, not make them. They also understand that in this war on terrorism, every effort must be taken to prevent those who would do America harm from realizing their plans. The president has been handed an opportunity with this wrongheaded and unconstitutional decision of the Supreme Court to act on both principles. The Administration can strike a blow against terrorists and a rogue federal judiciary by simply refusing to submit to the will of nine justices in black robes.