Asides

Andrew C. McCarthy on Boumediene v. Bush on National Review Online

By J. L. Bastiat ⋅ June 17, 2008 ⋅  Email This Post ⋅  Print This Post ⋅ Post a comment

More on Boumediene from Andrew C. McCarthy.

This was more of a political challenge than a legal one. Long ago, Congress and the administration should have joined forces to forge a comprehensive system that would answer those concerns. To their credit, the political branches did at least try to shore up the military detention system by providing, for the first time in history, enemy access to a civilian court — the D.C. Circuit federal appeals court — so jihadists could challenge the completed military proceedings. It is beyond arrogance that five Supreme Court justices did not allow that system to work; that, to bask in international huzzahs, they scrapped it before the D.C. Circuit could wrestle with a single case on a concrete record — before the tribunals could prove they were not kangaroo courts after all.

But let’s face it: The handwriting for what happened last Thursday has been on the wall since 2004. That’s when the Court, in a fit of imperious recklessness nearly the equal of Boumediene, decided in Rasul v. Bush that the jihadists had statutory habeas corpus rights. The handwriting was brought into starker relief in 2006 when, in Hamdan v. Rumsfeld, the Court selectively mined and tortured the language of the Geneva Conventions to vest the jihadists with trial rights under Geneva’s Common Article 3.