The Terror Court: How the Supreme Court Has Undermined Our National Security

by Stephanie Hessler

Our national security is in the hands of the United States Supreme Court. This is incongruous, since the Constitution expressly instructs that foreign policy should be conducted by the executive and legislative branches, through such provisions as the Treaty Clause, the Declare War Clause, the Foreign Commerce Clause and the Commander-in-Chief Clause. Nonetheless, the current Supreme Court has inserted itself into the middle of anti-terrorism policies. In doing so, it has undermined the decisions of our elected branches and thus has undermined the will of the American people. With our national security at stake, now, more than ever, all Americans should have their eyes on the high Court.

With life tenure, a Supreme Court Justice typically holds his position of power for far longer than any president. Take, for example, Justice Rehnquist who served on the Court for 33 years. Chief Justice Roberts was 50 when he was confirmed in 2005. Should he remain on the Supreme Court until he reaches Justice Stevens’ current age, 88, he would be on the bench until 2043, or during 11 different presidencies. By then, the policies of President Bush or a President McCain or Obama will be ancient history. Far more enduring than any other presidential anti-terrorism policy is the choice of a Supreme Court Justice.

Frankly, we should all be troubled by some of the Court’s recent national security rulings. It is instructive to examine a few of these rulings to observe the Court’s trend of blatantly second-guessing the anti-terrorism policies of the elected branches. The three Supreme Court cases discussed below all have two things in common: First, in all three cases, the Court ruled in favor of the enemy combatants. Second, in all three cases, the most liberal Justices – Stevens, Breyer, Ginsburg, Souter and Kennedy – were in the majority.

In Rasul v. Bush, brought in 2004, the Court was asked to consider whether the Federal habeas corpus statute allows enemy aliens captured abroad and held at Guantanamo to challenge their detention in US courts. It seemed clear that the habeas statute did not apply to Guantanamo detainees for two reasons. As an initial matter, the text of the statute presupposes that the courts may only hear cases brought in their jurisdiction, and Guantanamo Bay, Cuba is quite clearly outside of any U.S. court’s territorial jurisdiction. Furthermore, the Court had already decided a case directly on point 54 years earlier, Johnson v. Eisentrager, in which it determined that there has been “no instance where a court, in this or any other country where the [habeas] writ is known, has issued it on behalf of an alien enemy . . . Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.”

Yet, in a true case of legislating from the bench, the Court rewrote the habeas statute to allow for such enemy combatants to enter our court system. As Justice Scalia said in dissent, “For this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders' reliance upon clearly stated prior law, is judicial adventurism of the worst sort.”

When Congress learned that the Supreme Court had somehow misinterpreted its habeas statute to apply to Guantanamo detainees, it sprang into action to correct the Court’s perilous misconception. The Constitution gives Congress the power to define lower federal courts’ jurisdiction and to create exceptions to the Supreme Court’s appellate jurisdiction. So, in 2005, Congress passed the Detainee Treatment Act or DTA, which explicitly stripped U.S. courts (with the exception of the DC Circuit) of jurisdiction to hear any petitions from Guantanamo detainees. In very clear language, the DTA states that: “[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” This legislation was passed by an overwhelming margin of 84-14, uniting such politically diverse Senators as John McCain and Barack Obama. (It is worth noting that certain protections and safeguards were already in place for any individual detained at Guantanamo, such as his opportunity to appear before a Combatant Status Review Tribunal to challenge his status as an “unlawful enemy combatant”).

After the passage of the DTA, citizens might conclude that the Supreme Court would not, and could not, force itself into Guantanamo proceedings. But, they would be wrong. In 2006, Salim Ahmed Hamdan, a Guantanamo detainee, asked the Supreme Court to rule on the legality of his detention. His case seemed futile given that the DTA prohibited the Supreme Court from hearing his case. However, in an arrogant assertion of power, the Court ignored Congress’s directive and entertained Hamdan’s petition. Having done so, it then ruled that the military commissions set up by the executive branch to try Guantanamo detainees are invalid unless and until they are approved by the legislature.

The Hamdan decision forced Congress, once again, into damage-control mode. It had to act fast to curb the effects of this dangerous decision. Congress passed, and the President signed into law, the Military Commission Act or MCA, which created the military commissions that the Hamdan ruling necessitated. And once again, it specifically prohibited the Supreme Court from hearing petitions from our alien enemies held at Guantanamo. Thus, both political branches agreed on this important matter.

The final chapter in this tragic trilogy of cases is Boumediene v. Bush. The constitutionality of the MCA was challenged by detainee, Lakhdar Boumediene. It seemed an uphill battle for Boumediene because the MCA was drafted and signed into law specifically at the instruction of the Supreme Court in Hamdan, which said that“nothing prevents the president from returning to Congress to seek the authority for [military commissions] he believes necessary.” However, in a groundbreaking opinion, the Court declared part of the MCA unconstitutional and ruled that unlawful enemy combatants held at Guantanamo could enter our court system to challenge their detention. Ironically, such a policy accords terrorists more rights than POWs have under the Geneva Convention.

In dissent, Justice Scalia pointed out the danger of the Court’s supercilious assertion of judicial supremacy: “What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.”

And, there may be no stopping the runaway Court. The logic of Boumediene may be extended in at least two ways. First, there may be no real grounds to limit the case’s holding to Guantanamo. Now, alien enemies captured and held by our armed forces in Iraq and Afghanistan may ask our courts to set them free, hauling our military officers off the battlefield and into the US court system in an inevitable web of litigation. Second, if alien enemies are entitled to habeas protection under our Constitution, what is to stop them from asserting other Constitutional rights? Why not demand that, before capture, al Qaeda members must be read their Miranda rights? Why not determine that our military officers must get a warrant to enter a terror cell in Afghanistan? Or, why not conclude that members of the Taliban have a right to bear arms? These rhetorical questions may seem outlandish, but the Supreme Court raised these same concerns a half-century ago in Eisentrager when it had the good sense to rule that alien enemies do not have habeas privileges under the U.S. Constitution.

It is not too late to reign in the Supreme Court. When the next president takes office, six of the nine Supreme Court justices will be over 70, including 88 year old Justice Stevens. So the next President is almost certain to nominate at least one new Justice, if not several. John McCain has praised the dissenters in these controversial decisions and there is every reason to believe that he would nominate Justices who would join Scalia, Thomas, Alito and Roberts to put our anti-terrorism policies back in the hands of the politically accountable elected branches, as the Constitution intends. To the contrary, Barack Obama’s nominees are likely to reaffirm the dangerous doctrine that the Court is the supreme arbiter of our national safety policies. Obama has praised a judicial philosophy (or lack thereof) that would give judges unfettered power to ignore the law: he has pledged to nominate judges not who will apply the law as passed by the elected branches, but rather those who will decide cases based on “empathy” for the plaintiff; according to Obama, "the critical ingredient is supplied by what is in the judge's heart," not by what is in the law of the land. Such a view is both lawless and dangerous.

Sen. Obama is the most liberal member of the U.S. Senate, and liberal presidents have a penchant for appointing judges who think they are legislators. In these perilous times, a President Obama may give us something even more dangerous: judges who think they are generals.