Boumediene v. Bush

Last week’s Supreme Court decision to allow detainees at Guantánamo Bay the right to challenge detention in U.S. civil courts is a chilling sign of the politically correct times. The decision struck down portions of the 2006 Military Commissions Act, which, though denying detainees the explicit privilege of habeas corpus in federal courts, did provide a similar privilege within military tribunals. While there was significant debate as to whether military tribunals supplied adequate due process of law for the detainees, the Supreme Court’s decision to render them entirely ineffective, thereby transferring military jurisdiction over detainees of war to the civilian courts, is unsettling.

In his dissenting opinion, Chief Justice Roberts “concluded that ‘this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.’ The ruling, said Roberts, did nothing to advance the rule of law, ‘unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants,’” reported Tony Mauro of the Legal Times. A decision that should have fallen under the separation of powers became a convoluted interpretation of the system of checks and balances, whereby judges on benches believed themselves better arbiters than the President, Congress, and military leaders at home and abroad in the dealings of war.

Senator McCain rebuked the decision; Senator Obama hailed it. In an interview three days after the decision, Obama talked of the “unnecessary” situation – that is, holding potential terrorists at bay (no pun intended) in Guantánamo: “not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, “Look, this is how the United States treats Muslims.”

It is astonishingly naïve of Senator Obama to think that the treatment of “Muslims” at Guantánamo has been the sole cause for galvanized terrorist recruitment. By his simplistic reasoning, stories like the following should cause the terrorists to lay down their arms at any moment: “Iraqi detainees 'refusing to go home.'” Apparently the education programs are of such high quality in U.S. military prisons in Iraq that detainees are requesting to remain in prison even after their sentences are up, and relatives of detainees are asking to be put in prison in order to benefit from the educational system. If the U.S. news media had done a better job of circulating this story, maybe the war would be over.

It is worrisome that the potential future Commander in Chief could encourage such sloppy logic, for the dealings at Guantánamo are how the U.S. treats terrorists and probable terrorists who are a grave threat to our national security, not how it treats Muslims. The more we blur this distinction, the more we believe being politer to enemies of war will make them politer towards us, the more we lend the terrorists the rope by which they can hang us.

I am not saying by any means that prisons like Guantánamo should be allowed to be “black holes for the rule of law.” Military leaders must absolutely be held accountable to acting with integrity under legal standards. Negotiations and diplomacy are paramount. But those who need the power to make swift decisions and take decisive actions should not be held back by the political correctness of the bureaucratic bog.

In his book Faith, Reason, & The War Against Jihadism, George Weigel talks about the need for understanding the enemy (the jihadists), and this includes calling things by their right names. “Murderers in Iraq are murderers and terrorists, not insurgents or sectarians; suicide bombers are, in fact, homicide bombers; and so forth.” The judges and politicians leading this nation, as well as the news outlets, would do well to remember what we’re dealing with.