MYTH: Detainees are all terrorists, and we can do what we want with them

The Gitmo detainees -- the kind of people Gen. Richard Myers once described as being eager to chew through the hydraulic control lines of an aircraft in flight just to kill the pilot -- are being kept for months and years to pump the last bit of useful intelligence out of them. Once we've got all we think we can get, these people -- none of whom are U.S. citizens -- are being shipped to other nations for release or continued detention. Some of the places we're sending them back to are the selfsame ratholes they crawled out of, and the destination's government may not treat them with all the kindness and understanding they would receive in the editorial boardroom of the New York Times . Which draws liberal activists into the courts at the speed of light.

... How shall we fight the war we're in? Who shall we take prisoner and when, under what conditions and to whom shall we release them? The Constitution permits only one branch of government to decide those questions: the executive, not our increasingly injudicious judiciary. (Jed Babbin, "Habeus corpus?" American Spectator, 3/21/05)

REALITY

It's one of the many disadvantages of a democratic republic that the executive can't just operate on his own pleasure, above the law. If George Bush were King of America, he could indeed do whatever he wanted with whomever he pleased, without having to worry about silly little laws. This was the position of Al Gonzales, now Attorney General, who held that the president was above the law (at least when it came to torture).

But the America we believe in has a different system of government -- the rule of law. If some sheriff picks you up and puts you in a cell, he needs to charge you with a crime -- he can't just hold you there forever because he feels like it. Habeus corpus -- produce the body. During a war, of course, there is a separate standard -- the Geneva Convention on prisoners of war, which brings some semblance of order to the process of interrogating and detaining prisoners until the end of hostilities.

But the Bush administration, in prosecuting the War on Terror, wanted neither of these things -- the 750 prisoners arrested primarily in Afghanistan and Pakistan were declared "unlawful enemy combatants," some limbo between civilian and military. They live in an unnecessary ad-hoc category of detainees that the president reserves the right to do anything to. Guantanamo is a mess of detainees, many of whom are members of Al Qaida or the Taliban, but some of whom are not. And there's the rub.

Of those 750, the U.S. has brought charges against only four. Thirty-three have been released as "no longer enemy combatants," 65 have been sent to be detained or punished by our "allies," and 146 have simply been "repatriated," having no "further intelligence value." The detainees at Guantanamo were not all captured with AK-47s in their hands -- many were simply swept up at random by the Northern Alliance or Pakistan and transferred to our control. Since we know many of these men will be tortured or killed in their home countries, with the unproven label of terrorist hanging over them, we have a responsibility to make sure we didn't abduct any innocent bystanders.

On the battlefield, the commander-in-chief can make life-or-death decisions -- that is the executive power. But when it comes to prisoners we keep on military bases, far from the theater of action, we must treat them either as criminal suspects or military prisoners, and we must hold our conduct to the standards we expect from the "land of the free."

MYTH: The end of juvenile execution is cause for revolt against the Supreme Court

The last time we checked, the Supreme Court was supposed to use the Constitution as its guide. If anyone's to take notice of an "emerging national consensus," it's the legislature. So with one decision, a narrow majority of five activist justices turned legislative and imposed their personal social preference on every American voter, state legislator, congressman, and juror. But don't despair -- the Court didn't rely solely on their supposed national consensus to make their decision. Those five justices also looked farther afield -- literally -- and relied on foreign laws and international opinion in order to rationalize overturning more than 200 years of U.S. law and history. (The editors (!), "The U.S. Constitution: made in Jamaica?" Town Hall, 3/18/05)

The Supreme Court has consistently, for the past 50-odd years at the very least, substituted its judgment for the judgment of the people, without regard to the Constitution. In Roper v. Simmons , five justices of the Supreme Court happily exceeded their powers by banning states from applying the death penalty for people under 18. Justice Antonin Scalia , dissenting, pointed out that the Supreme Court's usurpation undermines the entire basis for judicial review: "What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years -- not, mind you, that this Court's decision 15 years ago was wrong , but that the Constitution has changed."   Scalia reiterated... If the Supreme Court is to be invariably and inescapably political, Scalia said, "you realize we have rendered the Constitution useless."   Indeed, we have. The time has come to do away with judicial review as a whole. (Ben Shapiro, "It's time to end judicial review," Town Hall, 3/16/05)

REALITY

We have previously dealt with the calculated outrage over Roper v. Simmons, the Court's decision that the execution of juveniles is cruel and unusual punishment -- see here and here. It short, a very boring and narrowly-reasoned ruling has, thanks to its timing, become a symbol of All That Is Wrong with the judiciary.

We've didn't think that TownHall.com had any editors -- they seem to print just about anything. But here they are with a laughable constitutional theory. When the Constitution lays out individual rights, such as freedom of speech or freedom from cruel and unusual punishment, those are limitations on what the legislature can do to its citizens. Questions of rights are specifically not to be determined by the legislature as regular laws -- that's the whole point of having a Constitution! And as we explained last week, the Court did not "rely" on the international opinion against juvenile execution (the U.S. being the only defender of the practice in the world) -- it merely pointed it out, after reaching judgment based on trends in the U.S. and sociological data: "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions."

And no, Justice Scalia -- the Constitution did not change. Two other things did -- first, the Court threw out your (Scalia's) own idiotic counting methods, whereby we gather an "objective index" of national consensus while casting aside the laws of any state that disagrees with you (Scalia) about the death penalty. Second, the question of juvenile execution further entered the national consciousness, to the point where most of the country found it repugnant and inappropriate. Just as "freedom of speech" has been extended over time to encompass modes of expression not delineated or imagined by the framers, so "crual and unusual" has been extended to apply to practices the modern age has come to repulse. Such phrases in the Constitution have an unchanging meaning, but an unenumerated application -- just as the framers intended.

It is a sad irony that those who accuse the judiciary of becoming "political" are the very same people advocating for party-line judges who hold to an outcome-based theory of jurisprudence.

MYTH: Unprecedented, unconstitutional judicial filibusters must stop

The Republicans didn't start this fight. Democrats launched what amounts to a first-strike procedural warhead last Congress. Republican leaders are simply demanding the restoration of the status quo in the confirmation process. Labels like "nuclear option" imply major, unprecedented and pre-emptive actions by Senate Republicans. Not true. It's the Democrats' tactics, filibustering and denying confirmation to majority-supported appellate court nominees, that is "unprecedented" and "pre-emptive." (Gary J. Andres, "Majority rule on judges," Washington Times, 3/17/05)

The minority leader's alarmist fulmination responded to the vow of Majority Leader Bill Frist to end Democratic filibustering of judges. The practice unconstitutionally encroaches on presidential appointment powers under Article II by raising the confirmation threshold to 60. (Bruce Fein, "Jaded political benchmarks," Washington Times, 3/22/05)

Mr. Reid and his leadership team would prefer that a supermajority of 60 Senators be required to approve the president's nominees for the federal bench. But this flies in the face of over 200 years of Senate history. Never before have filibusters been used in this manner on judicial nominees. (Sen. George Allen, "Call Senate Democrats' bluff," Washington Times, 3/22/05)

REALITY

Even as President Bush has packed the federal courts with 220 of his nominees -- about a quarter of the total number of judges -- the Republicans complain about just 12 of the most extreme and unqualified who have been blocked by Democrats in the Senate. To put that in perspective, between 1995 and 2000, one third of Clinton's nominees -- roughly 60 -- were blocked by Republicans using committee tactics. And yes, they also used the filibuster. Back in 1994, while filibustering Clinton nominee Lee Sarokin, Sen. Orrin Hatch called the filibuster "one of the few tools that the minority has to protect itself and those the minority represents." And as late as March of 2000, at least two more Clinton nominees were filibustered. It is incorrect and hypocritical to claim the filibuster hasn't been used on judicial nominees.

The Democrats wouldn't need to use the filibuster if it weren't for the Republicans absolute insistence that every one of Bush's nominees pass. For years, various rules made compromise necessary -- for example, if senators from the nominee's state objected, the nominee was "blue-slipped," and at least one member of the judiciary committee from the minority party had to OK the nominee in order to bring him or her to a floor vote. Under the chairmanship of Orrin Hatch, these exceptions were broadened to block more of Clinton's nominees, and were eliminated to pass all of Bush's nominees. In effect, the Senate has become a rubber-stamp body, with the exception of the rarely-used Democratic filibuster and a few Republican moderates.

The "nuclear option" to ban the filibuster to wave through a handful of extreme and unqualified nominees is unprecedented and dangerous -- even conservatives like George Will and these former senators think it's a dumb, short-sighted idea.