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.
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.
In short, we are no longer governing ourselves with respect to the defense of our lives and our liberty. The Declaration of Independence was proclaimed, and the Revolutionary War was fought, because the American people would not accept being dictated to with regard to this core of our unalienable rights. This was the heart of our nation’s founding. Yet, we are now being dictated to. We can’t vote Judge Bates out of office for elevating concern for the enemy’s due process over concern for the security of Americans. Similarly, we won’t have any electoral recourse against the judges of the D.C. Circuit Court of Appeals when they decide, as five Supreme Court justices have decided, that judges make better commanders-in-chief than presidents.
The Framers did not include federal judges as participants in our national defense. The judiciary was formed as a part of our government, to protect American citizens from violations of their liberties by their own elected representatives. Our courts were never intended to be supernumeraries, existing independent of our government and above our elected representatives. They are not supposed to be a forum to empower non-Americans — particularly alien enemies of our people — to invalidate actions taken in our national defense.
Our defense against foreign enemies is a political matter, not a legal one. To put it bluntly, it is none of the judges’ business. It is for the people’s representatives to decide — with the president holding the preeminent role as commander-in-chief, subject to the capacity of Congress to remove the president by impeachment for high crimes and misdemeanors committed in America’s defense, the capacity of Congress to shut off funding for defense and intelligence missions of which it does not approve, and the capacity of the American people at election time to remove the president and/or members of Congress who go either too far or not far enough in safeguarding our nation.
The courts, by contrast, are not politically accountable to the American people. That is why judges were given no role in national security. Self-defense is the natural right of nations. Without it, there is no liberty. In our system — the system of a free, self-determining people — the political branches were given plenary power over our defense. The courts were given no power. That was intentional: It created an accountability nexus between the officials making national-defense decisions and the people whose lives hung in the balance.
If we do not return to that arrangement, we are not free and we cannot defend ourselves. Instead, judges will continue to fabricate new protections for our enemies, informed by the latest pieties of transnational progressives. This vanguard of the Left is committed to the ideal of a post-sovereign world governed by their version of “law” — not by sovereign nations pursuing their own vital interests, particularly their own security.
The only path back to our original framework is for the president to inform the courts that he intends to honor Congress’s decisions about their jurisdiction. In the Military Commissions Act of 2006, Congress divested the courts of jurisdiction over aliens held by the United States as enemy combatants (except as otherwise provided in the MCA). The Supreme Court in Boumediene purported to invalidate that part of the statute, in effect declaring that the courts would be the final arbiter of their own power. This was brazenly imperial. The Constitution makes Congress the master of federal-court jurisdiction. Judges are fond of observing that the American president is not a king and “does not have a blank check.” Well, who gave the courts a blank check?
There is no reason for Americans to sit idly by while judges tell us what we will and will not be permitted to do in our national defense. In 1942, Pres. Franklin D. Roosevelt was informed that eight Nazi prisoners of war, sent by Hitler to conduct terrorist acts in the United States, had petitioned the Supreme Court to intervene in their military commission trial. FDR communicated to the chief justice that he did not care what the Court intended to say; he had no intention of releasing the captives and would ignore any order directing him to do so. Not anxious to demonstrate that the kings had no clothes — that Supreme Court justices have no power to enforce their diktats — the Court backed down, ruling in favor of FDR’s actions in Ex Parte Quirin.
FDR was right. The Constitution made him, not the justices, responsible for the conduct of war. It was the justices who were acting lawlessly by interfering in a matter that was none of their affair, not the president by telling them to mind their own business.
In the original Declaration of Independence, the Founders observed that the only reason for forming government is to secure our unalienable rights. A government is illegitimate once it becomes “destructive of these ends.” At that point it is the “Right of the People to alter or abolish it,” and to institute a government that will “effect their Safety and Happiness.”
We need not abolish our government to protect ourselves, but we must restore its original structure. We must face down the courts’ despotic reinterpretation of “separation of powers.” Government action is not illegitimate simply because it lacks the judicial imprimatur; judicial action is illegitimate if it intrudes into areas committed by the Constitution to the political branches or the states. The “rule of law” is not the “rule of lawyers” or the “rule of judges.” Judges can no more interfere in the conduct of war (including the treatment of enemy captives) than a president can raise taxes or the Congress issue a search warrant. The rule of law is the rule of the Constitution, under which judges do not prescribe their own writ. Were it otherwise, we would be reduced, as the Declaration puts it, to “absolute Despotism.”
This is one issue on which it would actually be a welcome development if President Obama imitated FDR. But let’s be clear: He won’t — he is entirely comfortable with insulated courts’ imposing the transnational-progressive agenda that elected Leftists must soft-peddle for their own political survival.
Nevertheless, the Obama overreach — the president’s unprecedented intrusion of liberty-stifling government into our private affairs — has prompted a back-to-basics backlash. The message being sent by millions of Americans, including the throng gathered in Washington over the weekend, is that we want to live in the United States of the Constitution, not the United States of Change.
That America begins with our security. Republicans should make clear that the president should not comply with judicial rulings issued under circumstances where Congress has divested the courts of jurisdiction. Regarding enemy combatants, Congress has so divested the courts in the Military Commissions Act. Congress’s control of federal court jurisdiction is the rule of law, and where the judges fail to live within that constitutional framework, their decisions should be ignored.
This is not a betrayal of what the Left calls “our values.” It is a reaffirmation of our principles. It will still be necessary to treat our captives humanely. But it will be for us through our accountable representatives, not for the courts, to draw the lines between national security and due process for the enemy. Unless we declare our national-security independence from unaccountable judges, we will no longer be governed by our Constitution, we will no longer control our own defense, and we will no longer be free.
– National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).