Supreme Court and Congress violate seperation of powers doctrine on war

Mark Levin:

Congress and the Court are systematically stripping the presidency of war-making powers. Congress demands that the president get court approval before intercepting enemy communications (we call that intelligence gathering) and the Court demands that the president get statutory support from Congress before he can use military tribunals to try terrorists.

And yet, neither Congress nor the Supreme Court have any explicit constitutional authority to make these decisions. Congress can cut-off funding for the war or any aspect of it, which it has not; and the judiciary's only role in these matters is to defer to the president, who has explicit and broad authority under the Constitution as the commander-in-chief.

Today, the Court has taken a giant new step in its usurpation of explicit presidential authority. The battle against terrorism is being fought as much in our courtrooms as on the field in Iraq and other places — where the likes of the ACLU and activist judges will set policy in contravention of the Constitution.

Congress and the courts are conferring rights and privileges on terrorists. They are conferring constitutonal protections on the enemy. They are granting the enemy jurisdiction in our civilian courts. They are extending the Geneva Conventions to an enemy that is specifically excluded from those protections.

I wrote an entire book on the subject of the Supreme Court, and how it's destroying America. And that's exactly what it's doing. In 2004, the Court said, in two cases — Rasul and Hamdi — for the first time in our history, that unlawful enemy combatants — that is, terrorists who themselves refuse to comply with the rules of law — have a legal right to access to our federal civilian courts and can file habeas corpus petitions there. That means they can ask a federal judge to determine whether their detention is proper. In the past, the Supreme Court refused to grant such access to our courts. And as I wrote at the time, this is a slippery slope. Having broken down the wall of restraint that had traditionally been recognized by the Court, there appears to be no limit anymore on the judiciary's role in second-guessing the commander-in-chief. And that's exactly what happened today.

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There is much more including a take down on the Geneva Convention portion of the opinion which is one of the most egrigious interpretations of "law" I have ever seen. It gives protections to an organization that is not a signatory, and does not abide by the terms, of the Geneva Convention. This stands all rational interpretation of the law on its head. It is like saying a non party to a contract is entitled to its benefits does not have to abide by its terms. This is brobably the biggest mistake in the decision. The power grab can probably be remedied by Congress and some in the Senate are already moving to do so. There will be a military tribunal for these unlawful combatants. What is not clear is if the five justices who made up this majority want to convey Fifth Amendment rights to unlawful combatants. If that is the case then this truly may be the worse decision since Dread Scott.