On Boumediene

George Will defends the Court's decision in the case, PowerLine's Scott Johnson criticizes Will.

Nothing makes a citizenry, or a faction of the citizenry, angrier than when the nation's unlected highest court makes a decision with which they disagree. However, Supreme Court decisions must be criticized in a cautious and moderate way, an independent judiciary being necessary to the maintenance of freedom in any democratic system of government. Not having studied law, much less constitutional law, I am also hesitant to criticize the decisions of five justices who are among the most intelligent and thoughtful law experts available in this country.

But everyone else is doing it, so why not give it a shot? George Will's main objections to the critics are that there have been worse decisions, the majority justices are intelligent people, the decision is to provide only the right to request a hearing, and the right of habeas corpus is important to the restraint of governmental power. All of these are true, but they are also irrelevant in different degrees.

The habeas right is very important in the restriction of government, but it has never before been applied to prisoners of war and/or non-citizens. To do so makes little sense. Even granting that POWs and non-citizens have this right, the Constitution provides for a suspension of the habeas right for just such a time as this. The fact that five intelligent Supreme Court justices made this decision is no defense, considering that four also opposed it vehemently. Seven justices were responsible for the disastrous Roe case. The fact that the case provides merely the right to request a hearing, and not a hearing per se, will serve to moderate the consequences of this ruling, it's true, but the right to request a hearing is still a right to a hearing, provided one chooses the right court. (And there's always a sympathetic court.) It does not change the fact that people who have never been accorded Constitutional rights, and with good reason, have been accorded Constitutional rights in a way that will have serious negative consequences for our nation's security.

George Will does make one other point--that military tribunals allow hearsay evidence and evidence produced under compulsion. Well, they aren't courts who hear the cases of citizens charged with committing a crime. They're courts designed to deal with cases having to do with military personnel and prisoners of war, and thus have proper jurisdiction over the detainees at Gitmo. What's more, their fairness is well attested.

The result of this decision will not be more humane treatment of prisoners of war. (And, despite mythology still prevalent today, the Guantanamo Bay facility is one of the most humane holding facilities in the history of warfare.) Instead, such prisoners will be shipped secretly to other nations for imprisonment and interrogation by far less civilized means, or they will simply be interrogated and killed quickly.

The Theme Of The 2008 Prez Race: Ugh

I haven't made it much of a secret that I don't like the idea of voting for John McCain this November. But this is a fantastic post written by Captain Ed Morrissey on the subject; here's an excerpt:

The election will present American voters with real choices on policy, especially on taxation, foreign policy, expansion of government, and national security issues, despite the complaints of the disappointed. It also provides a stark choice on the direction of the judiciary.

At least two Supreme Court justices will likely leave in the next four years, both of them from the Left, John Paul Stevens and Ruth Bader Ginsburg. The election will determine whether the court continues to turn in a more constructionist direction, forcing policy back to Congress where it belongs, or whether activists can outlast the constructionists. Jurists nominated by Obama or Hillary will have a much different idea of the Supreme Court's role than those nominated by McCain.

Captain Ed generalizes all anti-McCainiacs into the Coulter camp who believes that Hillary is to the right of McCain or that McCain and the Dems have no real policy differences, and that's unfortunate, since it leaves no room for those who oppose McCain for tactical reasons, like me. However, the post highlights one reason to vote for McCain that's hard to ignore: the positive direction in recent years of the Supreme Court.

The fact that Stevens and Ginsburg could leave soon makes a vote for John McCain very tempting. The Supreme Court was originally designed to be the guardian of the Constitution, and has instead tried to rewrite that document, much for the worse. Two new young originalist judges would solidify the constructionist majority for years; even a second FDR would have trouble packing the court, since there's no way for him to hold office for thirteen years. A wholesale shift in the way the Supreme Court treats legislation--using the Constitution less as a "living document" and more as a foundation for freedom and limited government--could potentially dampen or counteract whatever negative effects McCain could have on American conservatism.

However, that assumes that McCain's appointments to the bench would be constructionists. As I've written before, I think there has to be some skepticism about McCain's willingness to fight Senate Demcrats intent on interpreting the "advise and consent" clause as carte blanche to pick Supreme Court justices instead of the president. Still, the "Gang of Fourteen" issue may have been a bit overblown, and it certainly is a plus that we still have the power to filibuster now that Republicans are in the minority. The "nuclear option" would be a terrible irony right now for Senate Republicans.

I think I shall still wait and see whom John McCain picks as his running mate. Whatever happens this election season, we need to make sure that there's a good conservative leader to run in 2012 or 2016.