Ruling grants aid to enemies

The News Virginian
Published: June 20, 2008

A country whose people increasingly dwell in virtual realities is perhaps bound to wonder with Pilate, “What is truth?” or to dismiss as anachronistic the question’s object. This might explain the celebration in some corners over the Supreme Court’s decision to ignore the realities of war.
Such realities and accompanying true truths form the neglected backdrop to the jurisimprudence of five justices determining that suspected foreign terrorists held at Guantanamo Bay now may engage in legal jihad over their detention. Granting to terrorists habeas corpus, the mechanism which allows suspects to challenge the legality of their confinement, is the judicial equivalent of a victim handing an assailant a loaded revolver.
Knotting himself with the casual ease of a contortionist, Justice Anthony Kennedy dismisses as inapplicable the precedent for denying foreign combatants habeas corpus, the 1950 Supreme Court decision, Johnson v. Eisentrager. The justices then held by unanimous decision that foreign enemies had neither the right to access U.S. courts in wartime nor to habeas corpus when captured and imprisoned abroad.
That case involved German operatives captured in China and then transported to a section of postwar Germany under U.S. control. The justices ruled that U.S. courts had no jurisdiction over a military prison in wartime.
Striving for a distinction between Eisentrager and Boumediene v. Bush, Kennedy produced a sophism. “First,” he writes, “Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities ... From a practical perspective, the indefinite lease of Guantanamo Bay has produced a place that belongs to the United States, extending the ‘implied protection’ of the United States to it.”
His explanation is intriguing in the way that a wax nose is, capable of being molded to fit the face of any argument, no matter how fallow. Guantanamo is different, he says, because the fighting is taking place somewhere else and Germany was not in any practical respect a U.S. territory. But America did control the zone in which the prisoners of Eisentrager were held. And Guantanamo is not a U.S. territory, however Kennedy might define practical. Eisentrager and Boumediene are practically related, but who can tell?
In the case of the former, Justice Robert Jackson explained that no court, here or anywhere else, had ever granted habeas corpus to a foreign enemy outside its boundaries and that nothing in U.S. law grants such a right. Yet somehow Kennedy, the swing vote between the court’s two gangs of four, does not consider the Guantanamo decision to be an overturning of Eisentrager. It is precisely that and more: the suffocation of another vestige of a vanishing species, common sense.
Republican Sen. John McCain has lost much but not all of this. The former prisoner of war called the ruling “one of the worst decisions in the history of this country.” McCain is no fan of Guantanamo; he wants to close the detention center there. But he helped write the law that distinguishes what Kennedy and his liberal cohorts apparently cannot, the line between U.S. civilians and foreign jihadists.
“We made it very clear these are enemy combatants,” McCain said. “They have not, and never have been, given the rights of citizens of this country.”
Novel thought, that one — foreign killers whose existence is devoted to the destruction of America, her people, laws and way of life, should not be accorded the rights of U.S. citizens. We can only hope hilarity is a weapon as the sounds of Osama bin Laden’s laughter ring through an uncharted Pakistani cave.
Somewhere in the American memory must linger those images we longed to forget, of planes, flames and rubble. Or did that happen in some other realm, one escaped with the push of a power button? Perhaps some Guantanamo detainees will provide clarity once they have escaped the reality of the Bay.