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Militant Islam Monitor > Articles > Judicial Tyranny Has Usurped Executive's War Fighting Power

Judicial Tyranny Has Usurped Executive's War Fighting Power

March 11, 2009

Judicial Tyranny Has Usurped Executive's War Fighting Power

March 11, 2009 - San Francisco, CA - PipeLineNews.org - In an excellent piece published yesterday in National Review [see, http://article.nationalreview.com:80/?q=ZDQyYjEzMTg3ZDBjZTA4MzExNjU1MTE2MzkwYTRiMTc] former federal prosecutor Andy McCarthy delivered a broadside against the corrupting influence that the courts have had in the war on terror, a process which has elevated them above the rest of the government and beyond the controlling checks and balances established in our founding documents.

The case McCarthy refers to is Odah v. United States which was decided by the DC Court of Appeals last Friday and which expands beyond all reason, the degree of access that non-citizen terrorist plaintiffs have to sensitive national security documents in the discovery phase of their legal proceedings.

"Tellingly, the panel repeatedly observes that both sides agree these detention hearings are "analogous" to criminal proceedings...They treat wartime detention as if it were no different from criminal detention...as if the commander-in-chief were owed no special deference, as if the standards for holding Khalid Sheikh Mohammed shouldn't be materially different from those determining whether the garden-variety drug dealer gets bail. Except that here, KSM is actually treated better. In sum, this court has given alien enemy combatants - who have no constitutional entitlement to the due-process protections accorded to American citizens at trial - discovery rights superior to those the Supreme Court requires in the domestic criminal context..."

Though the effect of the Odah decision will be an unwarranted elevation of terror suspects rights over those of American citizens, which is indeed troubling, this case never would have come about had not the U.S. Supreme Court in a twisted 2004 decision, Rasul vs. Bush, already established that American courts have jurisdiction over the enemy combatants held at GITMO.

With that in mind we thought that revisiting Justice Scalia's dissent in Rasul might be of interest [see, http://www.law.cornell.edu/supct/html/03-334.ZD.html]

"...The Court today holds that the habeas statute, 28 U.S.C. § 2241 extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This is not only a novel holding; it contradicts a half-century-old precedent on which the military undoubtedly relied, Johnson v. Eisentrager, 339 U.S. 763 (1950)...This is an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field..."

Rasul turned on the question of jurisdiction which was explicitly set forth in the above referenced Eisentrager case, which involved an effort by German prisoners in an American administered prison in post-war Germany to obtain relief in American courts under habeas corpus.

"Nothing in the text of the Constitution extends such a right, nor does anything in our statutes." 339 U.S., at 768 (emphasis added). "[T]hese prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States." Id., at 777—778. See also id., at 781 (concluding that "no right to the writ of habeas corpus appears"); id., at 790 (finding "no basis for invoking federal judicial power in any district").

Without Rasul, Friday's Odah case would have never arisen. Understanding the implications of such unsound legal reasoning, the fact that Rasul was such a departure from precedent is what caused Scalia, joined by Rehnquist and Thomas to voice such a biting dissent.

"The reality is this: Today's opinion, and today's opinion alone, overrules Eisentrager; today's opinion, and today's opinion alone, extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts...Today, the Court springs a trap on the Executive, subjecting Guantanamo Bay to the oversight of the federal courts even though it has never before been thought to be within their jurisdiction…In abandoning the venerable statutory line drawn in Eisentrager, the Court boldly extends the scope of the habeas statute to the four corners of the earth."

With its present ideological composition, the possibility of Congress addressing the underlying issues surrounding the high court's hijacking of this aspect of the president's war fighting authority is nil; consequently, any future GOP administration must make it a matter of the highest priority to roll back the court's newly claimed authority in the most forceful manner possible. If this issue isn't addressed, the United States will very soon find itself much like Israel, held hostage by a renegade and thoroughly unaccountable judiciary, with little hope for appeal. http://www.pipelinenews.org/index.cfm?page=mccarthyid=3.11.09%2Ehtm

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