The victory of lawfare over the traditional and proven rules of warfare and national survival

Bruce Kesler gets it.

The game of bait-and-switch that today’s opinion plays
upon the Nation’s Commander in Chief will make the war
harder on us. It will almost certainly cause more Americans
to be killed.

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.

What drives today’s decision is neither the meaning of
the Suspension Clause, nor the principles of our precedents,
but rather an inflated notion of judicial supremacy.

. . . the
Court’s ultimate, unexpressed goal is to preserve the
power to review the confinement of enemy prisoners held
by the Executive anywhere in the world.

Today the Court warps our Constitution in a way that
goes beyond the narrow issue of the reach of the Suspension
Clause, invoking judicially brainstormed separationof-
powers principles to establish a manipulable “functional”
test for the extraterritorial reach of habeas corpus
(and, no doubt, for the extraterritorial reach of other
constitutional protections as well). It blatantly misdescribes
important precedents, most conspicuously Justice
Jackson’s opinion for the Court in Johnson v. Eisentrager.
It breaks a chain of precedent as old as the common law
that prohibits judicial inquiry into detentions of aliens
abroad absent statutory authorization. And, most tragically,
it sets our military commanders the impossible task
of proving to a civilian court, under whatever standards
this Court devises in the future, that evidence supports
the confinement of each and every enemy prisoner.

The Nation will live to regret what the Court has done
today. I dissent.
SCALIA, J., dissenting

The Constitution is not a suicide pact. It is through such travesties as this that patriotism, devotion to duty and keeping of oaths is diminished.

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8 Comments

Filed under Lawfare, Morale Operations

8 responses to “The victory of lawfare over the traditional and proven rules of warfare and national survival

  1. Andrew

    If Bush would’ve called them enemy combatants in the first place, none of this would’ve happened.

  2. You Blame Bush!

    How original.

  3. I am not sure how this is all going to shake out. I don’t think any legislation can pass congress to correct this.

    One cold thought…don’t take non-uniformed fighters prisoner any longer from on or near the battlefield.

  4. …of course we loose lots of HUMINT then.

  5. Assign an Iraqi Army or ANA squad commanded by a junior commissioned officer to each US rifle company for disposition of enemy combatants. If the unlawful combatant taken in arms on the battlefield is deemed to have some intelligence value, he gets to live. Implant an RFID chip in his ass so he can lead us back to the nest if he gets released later. Otherwise turn him over to the Host Nation authorities attached to your rifle company, and let justice be done.

    I don’t know what Articles of War or UCMJ the Iraqis and Afghans operate under, but I’m sure they can understand ley de fuga.

  6. So long as you can implement on site court martials and executions, grabbing prisoners, interrogating them, and getting rid of them won’t be much of a problem.

  7. Fake liberal policies are very efficient and totalitarian in getting rid of inconvenient humans. For example, PETA kills most of the animals it frees, probably because PETA has no facilities or interest in taking care of examples. Taking care of animals is for the farmers and animal abusers, you know.

    If cows are to be freed, there won’t be many cows around given how much food they need.

    This is PETA’s very efficient rate of eradicating and purging what they claim are “worthies”.

    The same applies to Al Gore and the Environmentalists. Everything they do is intended and aimed at destroying the environment.

    The Left’s attempt to protect terrorists and captives in American hands produce the same result if they are successful.