Sunday, October 22 , 2017, 7:38 pm | Fair 63º


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.

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.

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,

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