Excellent op-ed in the WSJ this morning by the dynamic duo of David Rivkin and Lee Casey. They show how a federal appeals court’s recent extension of the Supreme Court’s disastrous Boumediene decision is giving terrorists cover in Afghanistan.
Boumediene extended the U.S. constitutional right to judicial review of detention (habeas corpus) to alien enemy combatants detained at Guantanamo Bay — a terrible decision but containable if the damage applies only to the 230+ prisoners now held there. But the Supremes promiscuously suggested their reasoning might well apply outside Gitmo. Picking up that ball and running with it, the D.C. Circuit, in the Maqaleh case, gave habeas rights to jihadist prisoners held at the Bagram base in Afghanistan — at least if the prisoners were captured outside the combat zone in Afghanistan. The result? David and Lee explain:
American special forces, have now limited their activities in the Afghan-Pakistan border region — where al Qaeda and the Taliban are now most active — to avoid claims by enemy fighters that they were captured outside of Afghanistan, in Pakistan. If those enemy fighters were captured outside of Afghanistan, then according to the Maqaleh decision, they are eligible for habeas relief. This provides a strategic sanctuary for Pakistan-based enemy operatives, who are now effectively immune from U.S. ground attacks.
The rationale of the Supreme Court and the D.C. Circuit in these cases, as David and Lee recount, is that “permitting the president to move captured enemies from one location to another without judicial review would simply give the executive too much power.” That’s absurd. The president is the commander-in-chief and prisoner transfers in warfare are his constitutional prerogative, subject to Congress’s power to fund such operations. The courts, with no institutional competence or political accountability, should have nothing to do with this matter. And that’s certainly how the courts see their own constitutional prerogatives: When was the last time a president or Congress said we shouldn’t allow the courts alone to decide, say, the parameters of the Second Amendment right to bear arms because that would simply give the judiciary too much power?