Boudmedien v. Bush and The Legal Dreamworld

There’s been a lot of proper discussion about the fallout that is sure to come in the aftermath of Boumediene v. Bush, the 5-4 ruling that came from the Supreme Court late last week. In a nutshell, those who are detained as enemy combatants by the United States Military – that is, those non-resident aliens who are held as prisoners of war following aggression against our troops – now as a result of Boumediene have the right to challenge their detention in our court system as a violation of their Habeas Corpus rights.

This is a damaging turn of events in our nation’s effort to defend itself against barbarians who wish to end the very existence of the United States of America, and for that matter, Western Civilization as we know it. Not only can these same detainees tie the hands of their captors with rules giving the POWs the presumption of innocence, but they can petition for both they and their attorneys to have access to extremely confidential material with regard to National Security.

How’s the Left greeting this turn of events?

Naturally, with joy. And their poster child of the day, Presidential Candidate Barack Obama, a foreign policy buffoon in the mold of Jimmy Carter and the product of White Guilt run amock, praised the decision (from his campaign’s website – all bold emphasis mine):

Chicago, IL - "Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy. We cannot afford to lose any more valuable time in the fight against terrorism to a dangerously flawed legal approach. I voted against the Military Commissions Act because its sloppiness would inevitably lead to the Court, once again, rejecting the Administration's extreme legal position. The fact is, this Administration's position is not tough on terrorism (?????), and it undermines the very values that we are fighting to defend. Bringing these detainees to justice is too important for us to rely on a flawed system that has failed to convict anyone of a terrorist act since the 9-11 attacks, and compromised our core values."

Its not just Ms. Illinois, either.

Tuesday morning on the train ride into work I caught a letter to the editor of the Chicago Tribune from a Chicago Attorney, Thomas Sullivan. Apparently, Sullivan is an attorney that has petitioned for such rights to be granted to those held in Guantanamo and other military prisons around the world in the war on terror. I didn’t save the letter, regrettably, but the positions of Sullivan were seared in my head. Essentially, that the ruling was a great event in American Jurisprudence and will finally set the tables for those detained as prisoners of war to pursue their “right” to challenge their detention. But what really floored me was the alternate universe that Sullivan lives in with regard to the American voter. To paraphrase, he closed his letter to the editor with this statement “Barack Obama applauded the decision, while John McCain condemned it. This November, voters will have a choice as to which of these candidates they elect. I hope they recall each candidates position on the ruling when they go to the ballot box.”

Does Thomas Sullivan really think that the average Heartland American voter is going to pull the lever for Obama because he praised a Supreme Court decision that gives thousands of Islamofascists, both those detained now and those in the future, the very real possibility of using our courts to free themselves for future attacks? Its this kind of delusional thinking that continues to deal Sullivan’s party, the Democrats, devastating blows in Presidential elections. But I’m digressing here.

My point in this post is that Liberal Attorneys like Obama and Sullivan continue to fail to differentiate between war and civil society. To these Leftists, the laws that govern civil society are universal and apply in every situation. Attorneys like these two have blinders – they see nothing but law, rule, rights, procedure and order. In civil society, these blinders are not only appropriate, they are utterly essential. No one can argue this point.

However, war against enemy combatants – especially those who do not understand the principals behind our Bill of Rights, and many of whom, commit atrocities that no civil society would ever tolerate – operates under an entirely different system. It’s a system that is basically not much more than the “Law of the Jungle”. War is a clash of societies, who’s ends are not in sync with one another and therefore, cannot follow the others civil rules. War – especially the war against Terrorism - is the absence of civil society, where the very civility that Obama and Sullivan cry out for is under assault by the very monsters that these two seek to protect. Civil Society demands Habeas Corpus rights. War recognizes no such protocol.

Want proof that these two have no idea what the difference between war and civil society is? What does Obama talk about in the excerpts above? “Committed to the rule of law, respecting habeas corpus, our courts bringing these detainees to justice, failed to convict…” See the pattern? To Barack Obama, war is simply civil society with firearms and tanks. He applies legal rights through a lens of civil society to people who are operating against a civil society with uncivil means.

I’ve also commented many times about the fact that there IS the appropriate “judicial” review for those captured, many of who have been released, only to return to the battlefield. What’s more, I’ve also pointed out that many the life of luxury that detainees live at Gitmo, some refusing to return to their host countries.

Also, the great Andy McCarthy at National Review has two great pieces on this rule, which make the points above very well. They are linked here and here. My favorite McCarthy snippet:

When an elitist lawyer like Obama claims the criminal-justice system works against terrorists, he means it satisfies his top concern: due process. And on that score, he’s quite right: We’ve shown we can conduct trials that are fair to the terrorists. After all, we give them lawyers paid for by the taxpayers whom they are trying to kill, mounds of our intelligence in discovery, and years upon years of pretrial proceedings, trials, appeals, and habeas corpus. As a national-security strategy, however, and as a means of carrying our government’s first responsibility to protect the American people, heavy reliance on criminal justice is an abysmal failure.

A successful counterterrorism strategy makes criminal prosecution a subordinate part of a much broader governmental response. Most of what is needed never happens in a courtroom. It happens in military operations against terrorist strongholds; intelligence operations in which jihadists get assassinated — without trial; intelligence collections in which we cozy up to despicable informants since only they can tell us what we need to know; and aggressive treasury actions to trace terror funds. That is how you stop the homeland from being attacked, which is what we have done for the last seven years. And it is that from which Obama wants to move away.
Thomas Sullivan is right – we do have a choice. A wanna-be Commander in Chief who lives in fantasy land, who agrees with his fellow lawyers on the bench that there is no difference between the rights conferred upon Americans functioning in civil society and those who wish for the demise of that society (Obama); and a wanna-be Commander in Chief who, for all his faults, has enough sense to see where the courts have no jurisdiction (McCain).