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When the 5-4 Supreme Court decision on the Boumediene v. Bush case was handed down, which granted foreign enemy combatants (Al Qaeda and Taliban) being held in Guantanomo Bay the right to have their cases heard in american civilian courts, it didn't take much cogitation to determine which five Supreme Court justices comprised the majority and which four were in the minority. The liberal wing of the Court - Stephen Breyer, David Souter, Ruth Bader Ginsberg, and John Paul Stevens, voted in favor of the enemy. The conservative wing of the Court - John Roberts, Samuel Alito, Clarence Thomas, and Antonin Scalia, voted in favor of the president. The swing vote was Anthony Kennedy, who sided with the liberal justices, as he often does when the Supreme Court makes epic blunders, such as the Kelo v. New London decision, where the Supremes destroyed the private property rights of U.S. citizens.
The major issue to be decided in Boumediene v. Bush was whether foreign enemy combatants (prisoners of war) should be granted the civil right of habeas corpus. Justice Kennedy spews forth in his majority opinion:
It is true that before today the Court has never held that non-citizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding.
Kennedy admits that granting habeas corpus to non-citizen enemy detainees during war is unprecedented in American history. In fact, the majority ruling in Boumediene v. Bush overturned all precedent. In fact, this issue before the Court was decided 58 years ago (and prior to that as well). In the 1950 case of Johnson v. Eisentrager, the Court ruled that non-citizen enemies had no access to U.S. courts in wartime and that when captured and imprisoned abroad, they had no right to a writ of habeas corpus in a U.S. court.
Justice Kennedy's majority opinion attempts to rewrite Eisentrager, which was noted in Justice Scalia's dissenting opinion, as follows:
Eisentrager thus held — held beyond any doubt — that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign…. [The majority opinion] is a sheer rewriting of the case.… By blatantly distorting Eisentrager, the Court avoids the difficulty of explaining why it should be overruled.
So much for stare decisis.
In order to justify granting the enemy habeas corpus rights to which they are not entitled, Kennedy invents a couple reasons. He says the war has gone on for a long time (this is not a joke. He really used this as a reason), and also that the Military Commissions Act of 2006 setup by Congress is not a sufficient substitute for the habeas corpus rights to which the...enemy...is...not...entitled.
Scalia also notes the unnecessary wartime difficulties this ruling places on American military personnel:
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. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today… It sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.
Note to American soldiers in the field - You don't want to be dragged into court and face some Johnny Cochran-like shyster every time you take a prisoner during war. That is simply an unthinkable and unworkable scenario. So, to avoid this exact circumstance from taking place, our Supreme idiots have pushed you into the following action - The next time you see a terrorist planting a roadside explosive in Iraq or Afghanistan, don't take him prisoner, just KILL HIM instead, or he may end up back in the field again to kill you before the war is over, or you could be dragged into court and charged with a crime yourself if the Johnny Cochran-like shyster is very clever. Our liberal Supreme Court justices care more about the rights of the enemy during wartime than they do about the welfare of our own American sons and daughters. They have just proven so.
I expect the raving loons on the far left will be heralding the Boumediene v. Bush decision as a great triumph, since it meets their ONLY consideration of being anti-Bush, even though this was another POLITICAL decision made up out of whole cloth that will further erode national security, and will most likely end up getting Americans killed.
Why does it seem every liberal triumph is an American failure ?
This should be a huge issue in the upcoming presidential election, since the next president will almost surely be appointing new justices to our aging Supreme Court. Barack Obama pledges to nominate justices based upon "social justice" and political correctness (so we get more rulings like this one, that have nothing to do with the law). John McCain has promised to nominate originalist justices who will stick to the law. Do you trust McCain to stick to his word ? No, I don't either, but there is certainly a better chance than what we'd get with Barry O, which is certain to be a disaster.
If you want to read a good condemnation of the Boumediene ruling, read this one by Fred Thompson. Too bad Fred didn't exhibit this kind of fire on the campaign trail.