Will the Supreme Court try to grab war powers?

David Rivkin and Lee Casey:

The Supreme Court heard a spirited argument yesterday on whether foreign enemies, captured and held overseas, are entitled to the protections of the United States Constitution. Since the founding of our republic, the answer to that question has always been an unequivocal "No."

If, after hearing Boumedienne v. Bush, the court makes up new rules, it will mark an unprecedented expansion of judicial power into areas--the conduct of foreign affairs and war making--the Constitution reserves to the president and Congress, the elected representatives of the American people. The Boumedienne case is as much about the Supreme Court's willingness to constrain its own power as it is about detainee rights.

This latest challenge to the Bush administration's war policies was brought by enemy combatants held at the Guantanamo Bay Naval Station, who claim the right to a habeas corpus hearing--to determine the legality of their detention--before the federal courts. Congress attempted to foreclose such claims in 2005, when it passed the Detainee Treatment Act (DTA), creating an elaborate administrative process through which detainees can contest their classification as "enemy combatants," with an appeal to the U.S. Court of Appeals in Washington, D.C., and the Supreme Court. All other federal court jurisdiction was withdrawn at that time.

Nevertheless, because the Supreme Court wanted to clarify that the new system applied to pending, as well as future, cases, the court permitted these challenges to go forward in its 2006 decision in Hamdan v. Rumsfeld. Congress responded immediately, passing the Military Commissions Act (MCA) and overruling Hamdan.

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... To grant constitutional rights to the Guantanamo detainees, the Supreme Court must ignore its own settled precedent--on which the president and Congress were entitled to rely--and rewrite the Constitution itself.

The consequences would be disastrous. Such a decision would bring judges to the battlefield. As Justice Jackson warned, permitting foreign enemies to haul American officials into court "would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home."

Because the Constitution does not apply to foreigners overseas, the procedural rights accorded to the Guantanamo detainees are a matter exclusively for the political branches. Subjecting them to constitutional scrutiny would overstep the judiciary's legitimate power, making it the ultimate arbiter of U.S. foreign policy. Moreover, if the court were to grant constitutionally based habeas rights to aliens overseas, there is no principled means of avoiding extension of the entire Constitution anywhere in the world where U.S. forces (or officials) may go.

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If they extend habeas corpus rights why not extend Miranda rights too? The same logic would seem to apply. If we did that, how much intelligence do you think we would get about planned enemy attacks to kill our troops or non combatants at home? It is such a ridiculous proposition that it is scary that at least four justices thought it was worthy of review. America's ability to fight the enemy may lie on the unelected shoulders of judges not accountable to the voters. In this case, it appears that Anthony Kennedy will decide the fate of our war effort as the swing vote. That it is that close tells you how screwy the liberals on the court are.