Wednesday, July 23, 2008

Andrew C. McCarthy on Boumediene v. Bush & Congress on National Review Online


http://article.nationalreview.com/?q=MWFkYTAyYzFmZDkzZjBkNGI4NDhjOWNhNGFjZGIyNWI=&w=Mg==

The Suspension Clause provides: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (Emphasis added.)

The United States was invaded on September 11, 2001. Congress quickly acted to authorize the president to use all necessary force to quell our enemies. Had Congress any inkling that a decision as radical as Boumediene was coming, it would surely have suspended the writ of habeas corpus to the extent it may have existed for the benefit of foreigners outside the United States. Americans would have demanded nothing less. No one thought to do that, however, and rightly so: extraterritorial habeas is an absurd concept, to say nothing of the fact that it had been flatly rejected by the Supreme Court half a century before.

When we were attacked seven years ago, there was simply no reason to believe the writ extended outside the United States. Up until the Court's Boumediene power-grab, it was understood that foreign affairs, including the prosecution of foreign wars, were the province of the political branches — of diplomacy and military force, not legal processes. The jurisdiction of the federal courts was limited to the United States, except where Congress said otherwise. Outside our territory, our body politic, judges had no power. And their imprimatur has never before been thought necessary to legitimize extra-territorial government action that the Constitution empowers the political branches to undertake. 

Congress should suspend the Boumediene writ without delay, revoke the universal jurisdiction the courts have asserted, and put the judges out of the business of making new law. Congress should also commit itself to fashioning a legal system that comprehensively governs detention, trial and related matters — and it should do so within the next four months: that is, during the election run-up, while the public is engaged and candidates can tell us where they stand. 

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