Continuing his critique of the Supremes (see my last post on this), Dick Morris focuses on Boumediene, the enemy combatants decision. He starts out with some critical information, but when he gets to a legal solution, he misfires. He says:
[T]he Court’s decision to grant habeas rights to Guantánamo terrorists is a vivid example of reprehensible judicial lawmaking. To decide that men whose only nexus with the United States is that they shot at our troops is insane. In our book Fleeced, Eileen McGann and I reveal that 50 of the 420 inmates freed from Guantánamo so far have been identified as fighting against our troops in Afghanistan and Iraq. We know because we have had to kill or recapture them.
This is great information. In his Boumediene dissent, Justice Scalia alludes to the figure of 30 Gitmo detainees who’ve returned to the jihad. Dick’s number indicates (a) the figure of known instances is significantly higher than previously thought, and (b) common sense says it is higher still … unless you think we’ve killed or captured the only ones who rejoined the fray. (I’d note that at least one killed himself in a suicide bombing in which he killed several others.)
But Morris concludes:
The obvious answer to the Court decision on Guantánamo is to invoke the Geneva Convention and accord the inmates prisoner-of-war status. We clearly cannot hold them unless we do. As long as we keep them in judicial limbo, suspended between POW status and regular criminal law, the justices will be unable to resist opening the cell doors and turning them loose….
Nope. The Court in Boumediene did not say the combatants had to be released, and the Court in Hamdi (2004) — a case involving an American citizen combatant — acknowledged that detention under the laws of war is permissible. What we’re now arguing about is the process required to justify detention. The combatants have already been given Geneva Common Article 3 rights to humane treatment and regular court proceedings. If you needlessly give them POW status, (a) you would be saying that terrorists who slaughter civilians are honorable combatants, (b) you can’t interrogate them, which — in a war that is vitally about intelligence — constitutes one of the main reasons for detaining them, and (c) you would not be solving the judicial problem.
The Court is now saying that if you detain them, they are entitled to a certain degree of due process to test the validity of the detention, not the conditions of confinement. POW status would mainly address the conditions of confinement (and probably make it impossible to subject them to military commissions for war crimes). That is, it would give the jihadists grossly undeserved benefits, undermine the civilizing purpose behind the Geneva Conventions (which is to discourage barbaric attacks on civilians), and yet do nothing to obviate judicial inquiry into whether we’re holding the right people.