Re: Paging Andy McCarthy

 I am traveling to D.C. today, having spent my morning responding to Barack Obama’s remarkable views urging a return to heavy reliance on the criminal justice system as a counterterrorism policy. So I haven’t had a chance to pen anything in response to the eminent Mr. Will, who appears to have let someone else write his column  for him yesterday.

I agree with the thoughtful analyses offered by Ed Whelan and Mark Levin. A few other points. Back in early 2006, I wrote a piece dissecting Will’s sloppy and hyperbolic assessment of the Bush administration’s warrantless terrorist-surveillance program. I thought at the time that Will had surprisingly lost the distinction between our domestic body politic and the foreign arena. His column today seems to continue that error.

If he wants to study the purist position on habeas corpus, he should have a look at Justice Scalia’s dissenting opinion in Hamdi v. Rumsfeld (2004), which I discussed here. Rejecting the Bush administration’s executive supremacy in wartime claims, Justice Scalia (joined by Justice Stevens) opined that American citizens are entitled to habeas corpus unless Congress has suspended the writ, even during wartime. (He regarded the relevant World War II precedent, Ex Parte Quirin, which denied habeas to German saboteurs, at least one of whom was an American citizen, as wrongly decided.)

So why is Scalia, having vigorously argued for a robust interpretation of constitutional habeas rights, so hopping mad about Boumediene? Very simple: aliens outside the United States — and particularly, alien enemy combatants whose only connection to the United States is to levy war on her — are not members of our body politic. As such, they aren’t afforded habeas corpus or any other constitutional rights (or at least they weren’t until last Thursday). That is why the United States has, in its history, indefinitely detained millions of enemy operatives, with no access to our courts, during wartime.

Moreover, when the United States engages in a war, especially one overwhelmingly authorized by Congress, the whole government goes to war and our national purpose is to win. The federal courts are not an entity existing outside our government and our body politic. They are a component of government. Judges are agents of the American people, whose elected representatives voted to support, and are prosecuting, the war. Our politically accountable officials have committed our military forces — also agents of the American people — to the battlefield, where their task is to defeat the enemy.

It would be preposterous to believe that the Framers intended the American people’s courts to be available to the enemy, during a war the American people have decided to wage, in order to harass and dispirit the government officials the American people have charged to wage it and the forces which are doing just that.

Such a delusion is possible only if you think the courts belong to the judges, not the people, and that it is the role of the judges to exist as an independent, supranational tribunal where people outside our body-politic, including our enemies, are welcome to press their case against our country.

If foreigners want to advance such claims against the United States, that is the stuff of diplomacy, force-of-arms, or international tribunals if we have agreed to submit to them by democratic means. It is not the job of our own courts, derived from a farce that the habeas corpus rights preserved by our own Constitution were meant to run to the benefit of our enemies.