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A Hanging of Black for the Supreme Court

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“The Nation will live to regret what the Court has done today.” Justice Antonin Scalia

My mind is reeling. For the first time in our history…the first time under any President…alien combatants, in a time of war, have been granted habeas corpus. Our constitution has been distorted and stained by this shameful ruling. A shroud of black should be draped.

Yesterday the Supreme Court ruled 5 to 4 that prisoners at Guantánamo Bay have a constitutional right, in our federal court, to challenge their detention. Barbarian terrorists have been extended privileges as though they are American citizens.

Writing for the majority, Justice Anthony M. Kennedy said the Detainee Treatment Act of 2005 “falls short of being a constitutionally adequate substitute” because it failed to offer “the fundamental procedural protections of habeas corpus.”

In my piece today, I want to honor those Justices who love our country, who are patriots, those who spoke in dissent: Justices Antonin Scalia, John G. Roberts, Clarence Thomas and Samuel Alito, Jr. Both Justice John G. Roberts and Justice Antonin Scalia wrote vigorous dissenting papers. I am posting excerpts from one of those.

From Justice Scalia

Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war…. The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires. The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today.

Bench Memos at National Review

I tremble for our country and take umbrage at such “abandonment of principle…”

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