House Democrats reportedly plan detainee relocation hearings within the next two months in their campaign to defund the U.S. military base at Guantanamo Bay. If they succeed, hundreds of terror suspects now held at Gitmo will have to be brought to the homeland — including Virginia’s Quantico Marine Corps Base. Relocation will make them eligible to be tried in federal court, effectively giving the Democrats an end run around a recent federal appeals court ruling upholding the Bush administration’s argument that detainees outside U.S. territory cannot claim “the privilege of litigation.” The Feb. 20 ruling in Boumediene et. al. vs Bush by the U.S. Court of Appeals for the District of Columbia affirmed the constitutionality of the Military Commissions Act of 2006. By a 2-1 vote, the appellate panel ruled unequivocally that “federal courts have no jurisdiction in these cases” so long as they are not physically in U.S. territory.
The appeals court recognized that Congress removed detainee treatment from federal court jurisdiction when it passed the MCA following judicial meddling in military affairs in two prior cases. In Rasul vs. Bush (2004), the Supreme Court extended for the first time in U.S. history the legal rights of U.S. citizens to nonresident foreigners captured on overseas battlefields. In Hamden vs. Rumsfeld (2006), justices rejected military commissions that try captured prisoners under military law regulated by the Geneva Conventions. So Bush and the then-Republican-controlled Congress approved the MCA, which took detainee treatment out of federal court jurisdiction.
The purpose of keeping the detainees out of federal courts was to avoid what happened after the 1993 bombing of the World Trade Center. Federal officials learned the hard way then that trying terror suspects in open court inevitably led to the release of classified information later used to attack Americans. But some judges still haven’t learned this essential lesson, and detainee advocacy groups seem to care more about enemy combatants captured in Iraq and Afghanistan than about the safety and security of their fellow Americans.
The U.S. Supreme Court may soon agree to rule in the Boumediene case, notably including the issue of whether detainess have habeus corpus rights, an assertion the Bush administration stoutly denies. A decision in favor of the detainees would effectively repeal the MCA and would be a “totally unprecedented” judicial intrusion into the other two branches’ powers, according to Richard Samp of the Washington Legal Foundation, which filed an amicus brief on behalf of the administration. Samp believes a ruling for the detainees would justify “impeachment of members of the court.”
Perhaps. The Supreme Court is evenly divided between liberals and conservatives, and Justice Anthony Kennedy — the swing vote —also cast the fifth vote against the administration in Hamden. Of such ingredients are constitutional crises made.
