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A New Declaration of Independence
Judges don't belong in the national-security business, so let's get them out of it.


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Andrew C. McCarthy

It’s time for a new Declaration of Independence — a declaration of national-security independence from the U.S. court system. Without a new declaration of our determination to make democratically the life-and-death decisions that a self-governing body politic must make — a declaration of our refusal to be dictated to by unaccountable judges — catastrophe beckons.

On Saturday, the weekly Obama bad-news dump featured anonymous defense officials telling the New York Times that the administration will soon announce enhanced due-process rights for alien enemy combatants. The combatants at issue are not those held at Guantanamo Bay but those detained at the U.S. air base in Bagram, north of Kabul. Evidently, each of the 600 combatants will be assigned a U.S. military advocate — not a lawyer — to examine his case, locate sympathetic witnesses, and sift through classified files to hunt for exculpatory evidence.

The ostensible purpose is to provide a beefed-up opportunity for these prisoners of war to seek their release, despite the facts that (a) Afghanistan is a hot combat zone in which we face a resurgent enemy actively targeting — and killing — American personnel, and (b) the prisoners have already had extraordinary due process for such a war zone, which is why, though thousands of people have been detained for some length of time on suspicion of aiding al-Qaeda and the Taliban, only 600 prisoners remain in custody.

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The real purpose of this exercise is to impress the U.S. courts. A federal appeals court is about to hear the government’s challenge to an astounding ruling in Washington last spring. Federal judge John Bates held that prisoners of war detained in Afghanistan have an American constitutional right to file a lawsuit in the American people’s courts to challenge their detention by the American people’s military during a war authorized by the American people’s representatives. The administration’s maneuver is designed to improve its litigation position by pandering to the appellate court: See, we can give the enemy more rights without a judge ordering us to do so!

Congress has barred the federal courts from entertaining lawsuits against the United States by prisoners held in Afghanistan. Contrary to what the judges seem to think, we are ruled not by judges but by a constitution — one that makes not judges but Congress the master of the courts’ jurisdiction. Judges, moreover, have no institutional competence in the conduct of war. And the “plaintiffs” before them — non-Americans detained in a foreign country for making war on the U.S. — have no legitimate basis to invoke the rights of our Constitution, which are intended to protect our own citizens in our own territory.

Judge Bates came to the enemy’s aid anyway, based on what he takes to be a higher power: the Supreme Court. In their 2008 Boumediene ruling, a slim majority of five robed lawyers purported to vest the American constitutional right to judicial review (“habeas corpus”) in alien enemy combatants held at Guantanamo Bay. Though the Boumediene ruling was confined to Gitmo’s special circumstances, and though Bagram, unlike Gitmo, is smack in the middle of a combat theater, Bates — from the safety of his courtroom — saw no reason why the new Boumediene privileges shouldn’t be extended to America’s enemies in Afghanistan. In fact, under Bates’s reasoning, there’s no reason why these judge-made rights shouldn’t extend to every enemy everywhere on earth.

Boumediene imperiously turned the separation-of-powers doctrine on its head. In order to avoid tyranny, this doctrine divides federal power among three branches, and holds that each branch is supreme in its own constitutional sphere. That is supposed to mean that the political branches run wars, checked by the American people at the ballot box, with the judiciary butting out. Under the radical Boumediene usurpation, however, judges now claim that the separation of powers is really an agglomeration-of-powers — in themselves. By their lights, every exercise of governmental power by every branch is subject to judicial review. That means the judiciary runs wars, and everything else, immune from the political choices the American people make about the requirements of their national defense.

Bates’s ruling was the kind of decision that would end a politician’s career. But Bates isn’t a politician. He’s a judge. He doesn’t need to worry about what the voters think about such matters as where and how our armed forces should fight, how enemies trying to kill our forces and us should be treated, what access our enemies should have to classified information while the war is raging, and which enemies should be released so they can go back to killing the young men and women we have placed in harm’s way.



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