On June 12, 2008, the U.S. Supreme Court rendered its opinion on whether enemy combatants imprisoned at Guantanamo Bay, Cuba, have the right to petition for writ of habeas corpus. Habeas corpus is a Latin phrase which literally means, "We command you to bring the body." In legal terms, it has been the historical constitutional right afforded to Americans accused of committing a crime to have his day in court. Indeed, a fundamental right critical in a democratic society.
So what did the U.S. Supreme Court say? In a 5 to 4 decision, the majority ruled that enemy combatants do have the right to a habeas corpus petition. In other words, enemy combatants now receive taxpayer funded federal public defenders and access to our civilian courts. Since the ruling, many legal scholars have opined on this highly political decision. Most have been very esoteric, difficult for the laymen to understand.
But here is an article by John Yoo published today in the Wall Street Journal. Yoo is a law professor at UC Berkeley Law School, co-authored the USA PATRIOT Act, authored the famous, or infamous, White House memo on torture, an emphatic defender of a strong executive branch during wartime, a brilliant legal mind, and, a proud Korean-American.
Yoo gives us a little historical context.
["In World War II, no civilian court reviewed the thousands of German prisoners housed in the U.S. Federal judges never heard cases from the Confederate prisoners of war held during the Civil War. In a trilogy of cases decided at the end of World War II, the Supreme Court agreed that the writ did not benefit enemy aliens held outside the U.S. In the months after the 9/11 attacks, we in the Justice Department relied on the Supreme Court's word when we evaluated Guantanamo Bay as a place to hold al Qaeda terrorists."]
I would distinguish further that the German prisoners captured on the battlefield in WWII were uniformed military soldiers of a sovereign nation, motivated by their loyalty to country. (Yes, it's certainly arguable whether the officers were loyal to a country or to an evil ideology, but, the point is, WWII involved conventional warfare with conventional armies.) Yet, as Yoo points out, they still were not given access to our courts. Moreover, most of these German prisoners were decent people (again, arguable) who shared many similarities with Americans. But still, no civilian court. Why? Because they were prisoners of war, enemy combatants.
Today's war on terror does not involve two sovereign nations going at it. No. Rather, it involves a tolerant freedom loving nation against thugs who in the name of a god strap bombs to themselves and obliterate and maim civilian men, women, and children. And here are 5 Supreme Court justices deciding to give these Islamo-Fascists access to taxpayer funded civilian courts and a public defender. I know, it's hard to believe.
This is obviously a dangerous slippery slope. Once we take a piece of our Constitution and give it to the terrorists, what will stop the Court from extending the entire document? Mark my word, soldiers will soon be required to read enemy combatants their Miranda rights, in Arabic! It won't stop there. The 4th amendment right to be free from unreasonable seizure. The 5th amendment right to not incriminate yourself. And the 14th amendment right to due process. You can be sure the terrorists will demand these rights. It's only a matter of time these rights too are extended to the captured terrorists.
Scalia put it best, "The Nation will live to regret what the Court has done today. I dissent."