Terrorists Rights and the Supreme Court

By: Matthew RJ Brodsky

Submitted by Brodsky on Sun, 06/22/2008 - 13:39

The war on terror may never be the same.

On June 12, the court rewrote the rules for the Guantanamo detainees in the landmark case known as Boumediene v. Bush. The 5-4 majority opinion authored by Justice Anthony Kennedy concluded that the foreigners held at the U.S. Navy's Guantanamo Bay facility were protected by the U.S. Constitution's habeas corpus protections.

Habeas corpus, Latin for "you [should] have the body", is the name of a legal action or writ by means of which detainees can seek relief from unlawful imprisonment. The Suspension Clause of the United States Constitution specifically included the English common law procedure in Article One, Section 9 which states:

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.

While it is true that it is not right to detain foreign combatants without official charges indefinitely, granting them the same rights as American citizens appears not to be the right answer either.

I'm imagining soldiers engaged in a war and as U.S. troops are being shot at, they have to yell: "Drop your weapon! You are under arrest! You have the right to remain silent! Anything you say can and will be used against you in a court of law! You have the right to have an attorney present during questioning! If you cannot afford an attorney, one will be appointed for you!"

Aside from the fact that it will be difficult to teach all American soldiers the Arabic necessary to say this correctly - including the comprehension of gender and plurals in Arabic, it seems that many soldiers would be killed during this exchange.

Is the key to a strong American army having soldiers wonder what the lawyers will say if they kill a suicide bomber who is about to blow himself up?

There is something bizarre when my grandfather, who is a Canadian living in Canada and has visited his children and grandchildren in the U.S. dozens of times, has less rights in America than a Jihadist captured in Afghanistan.

Neither extreme - holding enemy combatants indefinitely or granting them the same rights as American citizens - is the right policy.  The Clinton administration viewed terrorism as a police matter and it failed.  For all of the problems with Bush's current policy, there is one indisputable fact:  Since September 11, 2001, there has been no successful terrorist attack on American soil.

We are in a new kind of war against political Islam that uses terrorism as their prime tactic.  We will need new operating parameters to adapt to these challenges.

Don't muddy the water

Submitted by Anonymous on Thu, 06/26/2008 - 19:07.
I think your assertion that giving Guantanamo detainees the right to a hearing is akin to having soldiers in combat yelling "Drop your weapon! You are under arrest!" is silly. It seems to me that your implying that all the detainees at Guantanamo just received all of the same rights I as an American citizen have. Which isn't true, cause I don't think they'll be voting this November. And I think your grandfather would likely have the same rights as a Jihadist captured in Afghanistan if he found himself imprisoned at Guantanamo. As, far as I can tell from looking at a number of definitions listed on line, there is no [should] in the definition of habeas corpus. And, it's impossible to prove a negative. So, stating that "Since September 11, 2001, there has been no successful terrorist attack on American soil" doesn't prove that the current administration's policies, that effectively reduce an Americans civil liberties, are the reason there hasn't been any attacks. After all, their are still hundreds of illegal aliens crossing the border every day. And any one of them could go buy some fertilizer and make a bomb with it.
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