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June 17, 2008

Exclusive: Justice Scalia on Gitmo Terror Ruling: It Endangers American Lives

Joel Himelfarb

Justice Antonin Scalia offered a chilling observation about last week's 5-4 Supreme Court ruling that terror suspects currently being held at Guantanamo Bay have a constitutional right to challenge their detention in federal court. The decision, which is based on a fundamental misreading of the Constitution and existing case law, "will almost certainly cause more Americans to be killed," Scalia wrote in a blistering dissent, joined by Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas.

Cut through close to 40 pages of nearly indecipherable legalese and that's the bottom line of Thursday's high-court ruling in Boumediene et al v. Bush, a case in which accused terrorists claim that they have been given insufficient opportunity to challenge their detentions in federal court. In his dissent, Scalia says the court majority is laying the groundwork for the early release of some very dangerous people.

On Friday, (as the New York Times editorial page was cheerleading in favor of the decision) an NYT "news analysis" explained: "The government said Thursday that its prosecutions before military commissions at Guantanamo would continue, but habeas corpus suits resulting from justices' decision are certain to complicate the 19 war crimes cases under way [those being tried include Khalid Sheikh Mohammed, planner of the September 11, 2001 attacks], giving detainees' lawyers a vehicle to try to stop these proceedings. Just as important, some lawyers said, defending scores of cases will be a huge burden for the government, most likely increasing pressure inside the Bush administration to send detainees back to their home countries."

Nearly 100 of the 270 detainees are Yemenis, Times correspondent William Glaberson added: "American officials have said they have not repatriated many of them because of fears they would be released quickly. The decision Thursday, several lawyers said, could encourage American officials to take their chances [i.e., release possible mass murderers], shrinking the population by a third or more." The crux of the problem is that the Pentagon believes that these prisoners are dangerous, but it can only prove that through use of classified evidence. This evidence could not be used in court without jeopardizing intelligence sources and methods.

As Chief Justice Roberts noted in his dissenting opinion, Congress and the president have given the Guantanamo Bay detainees greater procedural protections than have ever been given to alleged enemy detainees (whether U.S. citizens or aliens) in the history of the United States. These include the right to hear the bases of the charges against them, including a summary of any classified evidence and the ability to challenge the bases of their detention before military tribunals modeled after Geneva Convention procedures. (Some 38 detainees have been released as a result of this process.) They also have right, through so-called Combatant Status Review Tribunals, to testify, introduce evidence, call witnesses and question witnesses called by the government. Moreover, they have the rights in federal court "to employ counsel, challenge the factual record, contest the lower tribunal's legal determinations, ensure compliance with the Constitution and laws, and secure release, if any errors below establish their entitlement to such relief," Roberts wrote.

The ruling of the liberal court majority in Boumediene (written by Justice Anthony Kennedy and signed by Justices Ruth Bader Ginsberg, Stephen Breyer, John Paul Stevens and David Souter) is "devastating" Scalia writes: "At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield...Some have been captured or killed. But others have succeeded in carrying out their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandos. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Still another murdered an Afghan judge. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq."

And, as Scalia emphasized, the new rules that the Supreme Court majority wants to put into effect are being written to make it easier for even more of these people to return to the battlefield.

"Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operation where the environment does not lend itself to rigorous evidence collection. Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified," Scalia noted.

Moreover, he added (as Roberts pointed out in a separate dissent) that "we have no idea what these procedural and evidentiary rules are, but they will be determined by civil courts...and will be more detainee-friendly than those now applied, since otherwise there would be no reason to hold the [existing] congressionally prescribed procedures unconstitutional. If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of enemy returned to combat will obviously increase."

Moreover, even when the military has evidence to bring forward, it probably is not a great idea to provide it to attorneys representing enemies of the United States. The court majority makes clear that it wants to give the accused terrorists increased access to witnesses. (One can imagine the possibility of GIs on patrol in Iraq or Afghanistan being deposed by "embedded" lawyers as they hunt for the Taliban or Iraqi insurgents.) Scalia points to the real-world problems caused by providing terrorist detainees increased access to witnesses and classified information. During the 1995 prosecution of Sheikh Omar Abdel-Rahman, federal prosecutors gave the names of more than 200 unindicted co-conspirators to the blind sheikh's defense attorneys. That information was in Osama bin Laden's hands within a few weeks.

Scalia likens the Guantanamo detainees to the 400,000 prisoners of war held in the United States during World War II. Despite the fact that all of them were on U.S. soil, none was given the right to have their detention validated by habeas corpus action in federal court. So, these enemy POWs cooled their heels until the war ended. But those German and Japanese prisoners by and large were members of standing armies that adhered to at least some of the laws of war (like wearing uniforms). The 270 men at Guantanamo Bay are accused of being unlawful combatants - in other words, people entitled to a much lower level of legal protection. Scalia makes a very powerful case that the court majority in Boumediene has twisted the law and the Constitution - and it has done so in a manner that will almost certainly result in the deaths of innocent Americans.

Joel Himelfarb is an editorial writer for The Washington Times. The views expressed here are his own. Feedback: editorialdirector@familysecuritymatters.org.

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