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Harris Sherline: The Supreme Court’s Habeas Corpus Decision

The battlefield is not a court of law, and judicial micromanagement of war will only make a difficult situation for our troops more complex.

By Harris R. Sherline |

Split 5-4, the U.S. Supreme Court recently handed down a decision about habeas corpus rights of enemy combatants that Sen. John McCain characterized as “one of the worst decisions in the history of this country.” I agree, and here’s why.

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Harris R. Sherline

Henry Mark Holzer, professor emeritus at Brooklyn Law School, made the following points, among others, in an article titled The Supreme Court Wins, America Loses, in which he notes:

» “For the first time in our nation’s history, the court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.”

» “The court was able to review the case, in light of its long-standing practice of waiting until lower federal courts have an opportunity to rule.”

» “The majority (of the court) dishonestly eviscerated its controlling precedent on habeas corpus.”

» “Habeas corpus was never intended to apply, and never did apply, to unlawful enemy combatants captured outside the United States.”

» “The decision will severely compromise the military’s effectiveness in fighting terrorism.”

» “The judicial usurpation of presidential war-powers has now become nearly complete.”

In his dissenting opinion, Chief Justice John Roberts said, “The majority rests its decision on abstract and hypothetical concerns. Step back and consider what, in the real world, Congress and the Executive have actually granted aliens captured by our Armed Forces overseas and found to be enemy combatants.” He continued, “This statutory scheme provides the combatants held at Guantanamo greater procedural protections than have ever been afforded alleged enemy detainees — whether citizens or aliens — in our national history.”

The he asked: “So who has won?” Answering his own question, he says:

» “Not the detainees.”

» “Not Congress.”

» “Not the Great Writ (of habeas corpus).”

» “Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants.”

» “And certainly not the American people, who today lose a bit more control over the conduct of this nation’s foreign policy to unelected, politically unaccountable judges.”

National Review also offered the following observations, among others:

» “The court invalidated laws it had only recently implored Congress to enact, laws that provided these prisoners with generous protections never previously extended to enemy operatives in American history.”

» “Americans must regard enemies as if they were mere criminal defendants, entitled to an exacting legal process — access to discovery, witnesses, counsel, etc. — that will, as a practical matter, make it impossible to detain them without shutting down interrogations prematurely and informing the enemy of our national-defense secrets.”

» “Foreign al-Qaeda killers detained in Cuba can march right into the federal district courts and demand what, suddenly, are their constitutional rights ... more access to classified information? Subpoenas commanding the testimony (and cross-examination) of our soldiers regarding the circumstances of capture? Miranda warnings? Prompt access to counsel, which is certain to halt any questioning — and thus any revelation of lifesaving intelligence — before it can even start? Full-blown trials in the criminal-justice system with the same presumptions of innocence, privacy and other privileges vested in American citizens. And who will adjudicate the resulting mess? Our imperial court, of course.”

Living in a world of well-meaning wishes and good intentions does not win wars. If anything, such a mentality can only interfere with and make an already complex effort more difficult.

John Yoo, writing in the Wall Street Journal, notes, “Judicial micromanagement will now intrude into the conduct of war. Federal courts will jury-rig a process whose every rule second-guesses our soldiers and intelligence agents in the field. A judge’s view on how much ‘proof’ is needed to find that a ‘suspect’ is a terrorist will become the standard applied on the battlefield. Soldiers will have to gather ‘evidence,’ which will have to be safeguarded until a court hearing, take statements from ‘witnesses,’ and probably provide some kind of Miranda-style warning upon capture. No doubt lawyers will swarm to provide representation for new prisoners.”

The Supreme Court decision can only lead to more confusion and the intrusion of civil law procedures and processes into military matters. It is not, nor should it be, about gaining the approval of other nations. War is about breaking things and defeating the enemy, which includes killing them. It is not about “winning their hearts and minds.” Anything that complicates or makes matters more difficult for our troops is, by my definition, bad. It’s difficult to imagine our fighters stopping in the midst of an engagement to gather evidence and read prisoners their rights, assuming there is no language barrier.

There are always unintended consequences to laws and government mandates. In this case, I suspect that, in the heat of battle, U.S. troops simply will decide not to take prisoners, but might kill everyone who is fighting or appears to be fighting against them. The unintended consequence in this instance is likely to be fewer prisoners, or having other coalition fighters, such as the Iraqi or Afghani troops, take the prisoners.

The battlefield is not a court of law, and no matter how our judges try to alter the rules of engagement, they cannot change the very nature of war. It’s hard to think about the rights of people who want to behead us, other than to stop them any way we can.

Harris R. Sherline is a retired CPA and former chairman and CEO of Santa Ynez Valley Hospital who has lived in Santa Barbara County for more than 30 years. He stays active writing opinion columns and his own blog, Opinionfest.com.




comments powered by Disqus

» on 07.06.08 @ 09:42 AM

The very sad comment here just how hard Harris finds it to consider the rights of others. The nation was born on the consideration of the rights of “others.” We are a nation of “others;” people came here to escape from the kind of place Harris want’s our nation to be: where some arbitrary pronouncement can strip the rights of an “other”. He finds it inconvenient to consider foes as human, or at least as human as he considers himself to be. In Harris’s world, the terrorists have won, and he has joined them, ready to terrorize anyone that falls outside some line he draws.  The supreme court has confirmed that in America nobody gets to draw that line.

» on 07.06.08 @ 12:28 PM

Harris is out of touch with the real world and believes that this administration is on the right track when it uses the telecoms to illegally spy on our own people, constantly overreaches its powers, utilizes torture tactics we stole from terrorists that we used to condemn and maintain criminalistic, makes up its own rules, and uses the Constitution as toilet paper. Those who think like him and the extremist neocons are the reason this world is in such a mess, and this great Country has lost so much respect all over the world. To think that you are going to stop terrorism by removing peoples rights is archaic,idiotic, and sadistic.

» on 07.06.08 @ 03:22 PM

Anyone can “google” quotes in a vain attempt to validate a pre-conceived conclusion. This is a pedantic exercise not worthy of a grade school dropout. The writer uses quotes much as a dunkard would use a lampost; for support rather than illumination. He presents as experts John “I was against torture, before I was for it” McCain, the “fair and balanced” National Review, and John “it’s O.K. if we torture, but not if they do it” Yoo. These are your Constitutional scholars? What’s next, the legal analysis of Bill O’Reilly and Ann Coulter?
Here are the facts: The principles of habeas corpus have their roots in Anglo-Saxon common law pre-dating The Magna Carta of 1215. When incorporated into our own Constitution (Article One, Section 9), it cleary states: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” There is no way to misinterpret this. There has been no rebellion or invasion. Five U.S. Supreme Court Justices (a CPA should know that on a nine member court, this is a majority)concurrred. Yet, none of these justices opinions apparently were deemed worthy of being quoted.
The threat of terrorism is real, and we need to take appropriate measures to protect our freedoms and democratic institutions. But of greater concern is the mindset that our Constitution and Bill of Rights are outdated or apply only in times of peace and prosperity. Without a viable Constitution, respected by all Americans, we have no democracy. You can quote me on that.

» on 07.07.08 @ 09:50 AM

As usual poor myopic Harris cannot see the “real” forest through his shaded view of ideological “trees”. 

The Supremes granted the right to have some showing of basis for charges against those who could otherwise have been held forever without either hearing or formal charge. 

This ruling does not grant enemy combatants all of the rights of the criminally accused under our constitution, but it does prevent someone arbitrarily labeled as an enemy combatant to require the government to make a showing of the basis for their being held. 

Without such a ruling, King George the W could label Harris (or you or me) an enemy combatant and we could then be held forever without ever being tried or even charged and without a right to a hearing on the designation as enemy combatant. 

Now with a proper hearing, if a proper showing can be made, the combatant can still continue to be held, but without such a showing, he must now be released.

The recent case of Huzaifa Parhat shows how flimsy the basis for holding many current “enemy combatants” truly is

The federal court compared a military decision of the Bush Administration to a line in Lewis Carroll’s “The Hunting of the Snark”

The line was ‘‘I have said it thrice: What I tell you three times is true.’’

The Bush administration’s sole basis for holding Parhat as an enemy combatant was the fact that his name had appeared on three documents. The court said all three documents apparently came from the same dubious source.

The court stated that no matter how many times a lie is repeated, it cannot, merely by repetition, become a truth.

What makes the case all the more remarkable is that it was written by a Clinton appointee (Judge Garland) and joined by two conservative members of that court—Chief Judge David B. Sentelle, a Reagan appointee, and Judge Thomas B. Griffith, nominated by the current President Bush.

Without the recent Supreme Court ruling cases like this could never be heard

To offer an alternative answer to Justice Roberts question “So who has won?” here are my variations on his silly answer:
“The detainees who can now have the basis for charges and the facts supporting those charges against them brought to light.”
“Congress since the abuses of granted powers of the executive branch have now been brought under control .”
“The Great Writ (of habeas corpus) since this is precisely the “wrong” it was intended to correct.”
“The rule of law, because without it we are a nation of anarchy.”
“Most importantly the American people, who have had their individual constitutional rights confirmed, in spite of the ideological dissent from 4 politically unaccountable justices.”
Perhaps the most offensive comment Harris made was “Anything that complicates or makes matters more difficult for our troops is, by my definition, bad”

The international rules of engagement therefore mean nothing to Harris and random killing of non-combatants must apparently be an acceptable act to him.

I suppose that Mi Lai and Abu Ghraib each must therefore be proper military actions in Harris’ ever so humble opinion.

May we never again have someone with views similar to Harris and King George the W elected in our country.

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