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Saturday, July 09, 2005

Terrorism & The Courts – The Fight is the Same

Some events of great significance have occurred in the past week-plus, that I have not addressed. While to many the resignation of Sandra Day O’Connor and the terrorist bombings in London are not remotely related, I insist that they are.

They are related in that the response to one event affects the response to the other.

Whoever replaces O’Connor will impact how we pursue the Global War on Terror. Don’t believe me? Allow me to extrapolate.

The President of the US has the unquestioned authority to detain enemy combatants in time of war. Enemy combatants are not required to be “convicted” of being an enemy combatant to prove they should be detained until the end of hostilities. This derives from Article II of the Constitution, where the POTUS is designated as the Commander-in-Chief. This power serves the important wartime purpose of preventing captured enemy combatants from returning to the battlefield to conduct further attacks upon US forces. Additionally, nothing in the laws of war has ever required any country to charge enemy combatants, provide them access to counsel, or allow them to challenge their detention in court.

Enemy combatants do not end up in Club Gitmo ® by being in the wrong place at the wrong time. They are sent there after being captured in a military action and being thoroughly interrogated before the decision to inter them.

However, in 2002 the court determined that US citizens who were enemy combatants could challenge their detention in US courts. While to me this merely reinforces the old tradition of summary execution for captured spies & traitors, it has a far different effect upon the US’s methods – but only because, of course, the Court did not stop there.

You see, I don’t think it entirely unreasonable that a citizen can challenge his detention. That is what Hamdi v Rumsfeld resulted in. In the oh-so-familiar method of “creeping liberalism” that the court has engaged in over the past 50 years, we took a step further with the next related case, Rasul v. Bush. In this case, the Court determined, that, oh, wait a minute, despite some of the things we said in Hamdi, foreigners have the right to challenge their detentions, too. Now any bloomin’ enemy combatant can spend your tax money fighting his detention, which no country has ever allowed.

Bah, I just noticed that Andrew McCarthy wrote a post on the same thing at NRO. He’s way smarter than me, so here is the link.

Shoot. Just when I had an original thought…


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