Bench Memos

NRO’s home for judicial news and analysis.

Great Writ? Great Scott!


In the Washington Times, the increasingly self-parodic Bruce Fein continues his campaign to make Americans dumber about law, war, and their interaction, complaining that President Bush wants to smash and destroy the Great Writ—of habeas corpus, that is—by denying our captured enemies access to the civilian courts.  But as everyone knows who actually does know some legal history, captured enemy combatants in wartime, whether they fall into the legal or the illegal combatant category, have never been regarded as proper petitioners for a writ of habeas corpus in the civilian courts.  The privilege of the writ doesn’t have to be “suspended” where they are concerned, as Fein seems to think, because it never applied to them in the first place.  It is telling that Fein doesn’t cite a case supporting his view that is dated any earlier than the Supreme Court’s wrongheaded 2004 rulings on combatants’ “rights.”

Tags: Franck


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