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.

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.

SOLDIERS CANNOT BE MADE COPS
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.