July 23, 2008 | National Review Online

Suspend the Writ

For the protection of our troops on the battlefield and the security of all Americans, Congress needs, right now, to take action to reverse Boumediene v. Bush, the Supreme Court’s disastrous decision granting constitutional habeas-corpus rights to alien enemy combatants.

It’s time to suspend the writ of habeas corpus.

“What?” you shudder. Have you lost your mind? Has this Bush-whacky Constitution-shredder finally gone off the deep end?

No. Not even a little. I’m not talking about suspending the old writ of habeas corpus, the one that protects all Americans inside the United States.

I’m talking about suspending the new writ invented on June 12, 2008. The faux writ that Justice Anthony Kennedy and his four associates in the Boumediene majority weaved out of whole cloth. The writ that runs only to the protection of America’s foreign enemies in a war Americans overwhelmingly support. The writ that purports to extend the jurisdiction of the courts — which is to say, the rule of judges — anyplace on the planet where the federal government acts and where the American military fights.

I am talking about restoring the separation of powers and the proper, limited role of the United States courts.

And I am not talking about locking the Gitmo prison door and throwing away the key. I am talking about the vital first step in a complete overhaul by which the American people reaffirm their intention to determine the requirements of their own self-defense.

In that overhaul, unaccountable judges (and justices) must be removed from the prosecution of war except to the extent, and only to the extent, that Congress devises a role for them in ensuring that we are detaining the right people. In a functioning democracy, the people’s representatives dictate what issues are delegated to the politically unaccountable courts. We’ve had that backwards for too long.

Further, in the overhaul, Congress must resume — and get about the long-delayed business of performing — its rightful role of prescribing the rules and procedures under which legal cases proceed in the federal courts.

The questions now press urgently: Are we are serious about achieving victory over our jihadist enemies? Are we serious about safeguarding the lives of our young men and women in uniform? Those lives of our best and bravest have now been seriously jeopardized, and not just by the legal and political pressure to release enemies who should be detained during the fighting — at least 37 of whom are known to have returned to the jihad according to information released by the Pentagon (in his Boumediene dissent, Justice Antonin Scalia put the number at 30).

The Boumediene challenge is even more basic. The justices want to see our enemies as mere defendants, but our soldiers cannot be seen as cops. Police duties — Miranda warnings, evidence collection, forensic analysis, report-writing — are inimical to and cannot safely be performed in combat. Cops and FBI agents carry out these investigative tasks meticulously because they enjoy the relative safety of peacetime America. If those tasks are imposed on our troops in the deadly crossfire of the foreign battlefield, Americans will die.

If you doubt this, just consult any of the many dedicated men and women in law enforcement who, in their earlier years, served in the military during wartime. They will tell you, based on hard experience, that only a panel of elite lawyers — unburdened by the need to explain themselves to voters — could look at a battlefield and see a crime scene.

We plainly need a legal system for detaining enemy combatants, trying war criminals, and conducting intelligence collection for a novel kind of war against a ruthless, non-state enemy that defies convention. Congress should have devised such a system already. But the fact that Congress has been derelict does not mean it is suddenly appropriate for the devising to be done by judges.

This is a job for our lawmakers, and it is their solemn obligation to perform it — not watch from the sidelines, as if they were impotent, while judges appropriate their authority. Because of their institutional responsibilities (which do not include national security) and their insulation from politics (which means disconnection from those whose lives hang in the balance), judges are hardwired to elevate due-process concerns over all others. If judges are left to their own devices, the legal system for the war on terror will gradually become indistinguishable from the civilian-justice system — with privileges and tactical advantages our enemies do not merit and will use to endanger Americans.

Working together, Congress and the executive branch can design a system that is appropriately mindful of due process but guided primarily by the security of our homeland and our troops. Nevertheless, this is not a job to be slapped together in a couple of weeks. It will take a few months of diligent work. It must be done with due haste, but not hastily. It’s important, so it will take time to get it right.

Meanwhile, though, as Congress idles, the federal courts are already divvying up the Boumediene fallout and preparing to make up rules and procedures as hundreds of habeas cases roll along. That process should be stopped before it can do any more damage.

Congress has the power to stop it. Instantly. It can suspend the new Boumediene writ.

In their recklessness, the five justices in the Boumediene majority do not merely arrogate to themselves war powers that courts have no business performing — such as the battlefield determinations of who the enemy is; of what the battlefield is (during a war in which the enemy claims the power to strike anyone, anyplace, anytime); of what duties our troops owe to — and what lethal risks they must bear for — our enemies in the collection and preservation of “evidence” … even as they perform combat operations; of what commanders’ decisions may be second-guessed by lawyer hindsight — subordinating military discipline and success to the greater value judges place on due process.

No, not content with that, Justice Kennedy & Co. also undertake to dump the whole mess on the very federal district judges Congress cut out of the equation — as it was Congress’s perfect right to do — in the 2005 Detainee Treatment Act and, more emphatically, in the 2006 Military Commissions Act.

The mess, furthermore, has been dumped on the district-courthouse steps without a shred of guidance. That is, in the Supreme Court’s hauteur, it has set in motion a process in which the rules, procedures, and wartime obligations owed by the United States to enemies we are trying to defeat will be made up by judges as they go along, ad hoc, when issues randomly arise in litigation.

Do you think that might be a problem? Well, ask yourself: Must alien enemy combatants be given Miranda warnings at the moment of capture? (The Supreme Court, after all, held in 2000 that anyone who has Fifth Amendment rights under the Constitution is entitled to the protections of its Miranda decision.) Are alien enemy combatants entitled to lawyers subsidized by the taxpayers they are sworn to kill? Does that entitlement attach immediately upon capture (which would shut down interrogations that yield life-saving intelligence)? At some later point? And if so, who is to say what that later point should be? Is a “reasonable time” the time it takes to exhaust the potential for gleaning actionable information? Or is it a short interval so as not to offend law-school-inculcated sensibilities about the “right” to counsel?

When and how must combatant status be determined? How thorough must the process on the battlefield be? What about the combatant-status review process? May a military prosecutor simply explain to a judge — civilian or military? — what the evidence supporting the combatant determination is? Must the government obtain affidavits from soldiers who made captures in the heat of battle? Or do the combatants get to issue subpoenas to our troops and intelligence officers, requiring in-court testimony and cross-examination?

How much discovery do the combatants get, including national-defense information from the government’s classified files? How much “exculpatory” evidence are they entitled to? In civilian proceedings, exculpatory evidence is not limited to evidence that shows a defendant is innocent. The concept has been expanded over the years to include (depending on the presiding judge’s predilections) pretty much anything a clever defense lawyer would find helpful to his case. Is that a standard we owe to the enemy while the war ensues?

And what is the burden of proof? Must the military satisfy the judge that detention is warranted “beyond a reasonable doubt” — the heavy burden that applies in civilian criminal cases? Will “clear and convincing” evidence do? How about “probable cause”? Or a “preponderance” of the proof? And, by the way, whatever the standard is, what exactly is to be proved? That is, who gets to define what an enemy combatant is? Is it a military calculation made by professional soldiers who actually engage the enemy? Or is it whatever the judges decide from case to case?

Is the military entitled to a presumption in favor of detention? Congress has given prosecutors such a presumption in civilian cases involving particularly serious criminals. Do our soldiers get it for terrorists? Presumption or not, do the federal rules of evidence apply? (They don’t apply in civilian grand juries and detention hearings, even though American citizens are routinely arrested and imprisoned based on those proceedings.) Are we bound by Uniform Code of Military Justice procedures? Or do judges pick and choose based on what seems fair to them under the circumstances?

And what happens if a judge second-guesses the military and decides the detainee is not a combatant? Must he be released? What if no country wants him? Or if we have reason to think a willing country may persecute him upon transfer? (It is a treaty violation to extradite people to such places.) Must people our military believes are dangerous enough to detain be released into the United States?

Note that we’ve only begun to scratch the surface of questions to be addressed. Anyone who’s spent any time in the litigation business knows that the potential issues are limited only by the human imagination. (Picture a human imagination shaped by, say, three years at Yale Law School before a stint at the ACLU).

Now consider this: In the civilian criminal justice system, a thicket in which judges have undeniable expertise, the American people do not allow — and have never allowed — the courts to make the rules up as they go along. The judicial power, instead, is heavily restricted by statutes, procedural and evidentiary rules, sentencing guidelines, and all manner of legislation enacted by Congress.

There’s a good reason for that: the occupation of judging — a difficult enough job — is to apply the law. It is Congress that writes the law. Judges do not get to dictate what cases get heard in court, and they do not get to prescribe the rules and standards that govern court proceedings. Even in peacetime, when ordinary law enforcement governs, it is the province of our elected representatives to define legal causes of action and formulate courtroom procedures. This ensures that the values judges are applying are our values, not their own. We call that democracy.

How much more essential is it, then, that Congress assert itself with respect to enemy combatants? War powers — including the apprehension and handling of enemy combatants — are political powers, not legal ones. The decision to go to war is the most important one made by a body politic. The prosecution of war is the responsibility of those government officials elected by and answerable to the people whose lives are at stake.

If war powers are delegated to politically insulated judges, then the American people are no longer in control of their most basic, natural right of self-defense. The very point of government, moreover, is thereby perverted. A political community forms a government, most elementally, for its own protection from external threats. That is why the first responsibility of government is the security of the governed, not due process for the enemies of the governed.

Assigning war powers to the political branches — as our Constitution does, or at least did until Boumediene — ensures that this democratic imperative is honored. Transferring them to unelected, unaccountable officials — as Boumediene does — is undemocratic, and unacceptable.

Let’s back up for a second. If someone were to posit a general suspension of the writ of habeas corpus enshrined in Article I, Section 9, of the Constitution, that would indeed be a radical proposal. It is not what I am suggesting.

What is radical, though, is Boumediene. Prior to June 12, 2008, when the ruling was announced, there was no writ of habeas corpus outside sovereign American territory. But five voracious justices now say not only that there is a global writ — i.e., that the legitimacy of government action always and everywhere depends on its capacity to win judicial approval. The justices further audaciously declare that this new global writ vests judges with the power to probe and reverse combatant determinations no matter how fastidiously any system defers to our enemies’ “rights” — and regardless of whether that system has been designed by the military or even Congress.

That is not democracy. It is judicial oligarchy — and nothing in our Constitution requires that we stand for it.

What I am thus proposing is that Congress simply return us to the law of the United States as it existed, soundly and through innumerable crises, for 219 years preceding June 12. Make clear that we are not suspending the traditional writ: we must not disturb the core function our courts perform in ensuring our domestic rule of law. But suspend the writ outside the United States (where it never ran in the first place) as to all non-Americans (who were never entitled to its protection in the first place). We must reject the perilous new world of enemy habeas and extra-territorial judicial fiat that has been in place not for 219 years but for one month.

Ordinarily, our law holds that Congress may not reverse a ruling that the Supreme Court contends is rooted in the Constitution, as five justices contend in Boumediene. Most of the time, the Court’s handiwork can be undone only by amending the Constitution or — an even more drastic measure — stripping the courts’ jurisdiction over the subject matter in dispute (which the Constitution expressly empowers Congress to do, as NR’s Ramesh Ponnuru and Prof. Robert P. Geor e discuss in this important 2005 article).

But Boumediene is saliently different. The right on which the majority purported to rely may by its own terms be suspended. The Suspension Clause provides: “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.” (Emphasis added.)

The United States was invaded on September 11, 2001. Congress quickly acted to authorize the president to use all necessary force to quell our enemies. Had Congress any inkling that a decision as radical as Boumediene was coming, it would surely have suspended the writ of habeas corpus to the extent it may have existed for the benefit of foreigners outside the United States. Americans would have demanded nothing less. No one thought to do that, however, and rightly so: extraterritorial habeas is an absurd concept, to say nothing of the fact that it had been flatly rejected by the Supreme Court half a century before.

When we were attacked seven years ago, there was simply no reason to believe the writ extended outside the United States. Up until the Court’s Boumediene power-grab, it was understood that foreign affairs, including the prosecution of foreign wars, were the province of the political branches — of diplomacy and military force, not legal processes. The jurisdiction of the federal courts was limited to the United States, except where Congress said otherwise. Outside our territory, our body politic, judges had no power. And their imprimatur has never before been thought necessary to legitimize extra-territorial government action that the Constitution empowers the political branches to undertake.

Congress should suspend the Boumediene writ without delay, revoke the universal jurisdiction the courts have asserted, and put the judges out of the business of making new law. Congress should also commit itself to fashioning a legal system that comprehensively governs detention, trial and related matters — and it should do so within the next four months: that is, during the election run-up, while the public is engaged and candidates can tell us where they stand.

I have suggested a national-security court. Others have made similar proposals. It is not important what the tribunal is called, and we can debate where the lines should be drawn between due process and national security. The point is that the new system must be designed by the people’s representatives. It must be reflective of our values and duly mindful of military necessity in a war Americans intend to win.

Republican presidential hopeful John McCain and many other elected officials expressed apt outrage over the Boumediene ruling. But talk is cheap. They have it within their power to reverse Boumediene, restore the proper balance of power among the branches of government, and reaffirm democratic self-determination.

What’s needed now is the will.