The Supreme Court apparently is exiting the terrorist detainee administration business. Yesterday, it declined to hear the appeals of seven Gitmo detainees on whose behalf habeas petitions were filed, and denied, by lower courts.
In Boumediene v. Bush, the Supreme Court held that detainees have the right to turn to the American judicial system for a “meaningful opportunity” to challenge their confinement. But a meaningful opportunity doesn’t necessarily translate into release, particularly since the government has released large numbers of detainees and now holds only those it considers the worst of the worst.
Consequently, according to Robert Barnes of the Washington Post, the detainee rights bar has been unable to convert Boumediene into a vehicle for successfully litigating many of these cases.
The detainee rights bar had high hopes for its latest case. It involved a Yemini national named Latif, who was captured in Pakistan a few months after 9/11. Unable to portray himself as a local shepherd, Latif claimed that he was in Pakistan seeking medical care. But government evidence showed that, whatever his original reason for being in Pakistan, he had received military training and joined the Taliban.
A district court judge found the government’s evidence “unreliable” and ordered that Latif be released. This was the only “win” for a detainee among recent cases.
But the Court of Appeals reversed. Judge Janice Rogers Brown found that, although the intelligence report has flaws, it is entitled to the “presumption of regularity” that generally applies to government work. Brown also took a well-deserved shot at Boumediene itself, writing that its “airy suppositions have caused great difficulty for the executive and the courts.”
The detainee defense bar hoped that Brown’s shot at the Supreme Court’s jurisprudence, plus a strong dissent by Judge David Tatel, would move the Court to review the case. No such luck.
Why not? Because, I believe, the Court no longer perceives a problem with detainee policy. The wins for the detainee defense bar before the Court were the product of a profound mistrust of President Bush by the liberal Justices plus the crucial Justice Kennedy. That mistrust – fueled by the liberal, anti-Bush press, eager to “atone” for what the left had convinced it was a failure of reporting prior to the Iraq war – caused this bloc of Justices not to defer to the executive in the way earlier Court’s had during wartime. The Court was also aware that this war is different because there’s no end in sight.
With a Democrat now serving as the executive, the liberal Justices plus Justice Kennedy are satisfied that this matter no longer requires their attention. Regular service can be resumed.
Better late than never.
Meanwhile, the left-wing bar is working on Plan B. Having taken things about as far as they can go in the American legal system, it is now focused on undermining efforts to protect this country by using foreign courts and entities.
For example, according to Jack Goldsmith in Power and Constraint, leftist lawyers are filing lawsuits in Britain, Pakistan(!), and elsewhere against administration officials who authorize drone attacks that kill suspected terrorists. The idea is to intimidate U.S. officials and personnel and, Goldsmith reports, some do feel intimidated.
Apparently, the leftist bar would have us either leave al Qaeda and its friends alone or send in troops (presumably accompanied by lawyers), at great risk to life and limb, to capture them, bring them to the U.S., and then give them gold-plated legal process to test whether they truly are dangerous.
Plan B is disgusting. But it’s also the logical outgrowth of Plan A, the lawyerly campaign against Bush-era anti-terrorist policies that involved measures far less harsh than killing terrorists through drone attacks.
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