What Next For Guantanamo's Bad Guys?
Now that a few hundred habeas hearings are going to be scheduled before federal judges, what possible hope do we have that the judges will handle the matter well? As Andy McCarthy points out today at The Corner, we don't trust judges enough with criminal cases to let them make habeas decisions without reams of guidance and piles of precedence, there are no such safety brakes in place to guide judges in the proper handling of foreign enemy combatants. McCarthy points out the risks of this situation:
By comparison, (a) alien unlawful enemy combatants are more serious threats to public safety (indeed, to national security) than drug dealers and violent felons; (b) alien unlawful enemy combatants are also not defendants accused of crimes (they're hostile operatives captured in military operations overwhelming authorized by Congress following the mass-killing of nearly 3000 Americans on 9/11) and, therefore, they are not entitled in detention hearings to the constitutional presumption of innocence that applies in civilian prosecutions (by contrast, they do get the presumption of innocence if charged with war crimes); and (c) judges have no institutional competence in determining the status of enemy combatants, a war power the framers committed to the political branches.McCarthy proposes a narrow detention procedure law for these cases, which could be modeled on the federal pretrial detention statute, followed by a national security court, but sees the problems inherent in the suggestion. The Left has fought tooth and nail to minimize the risk posed by the Guantanamo detainees and to give them undeserved legal rights, and they're not about to settle for a Pyhrric victory this close to the finish line.
Even with all the guidance before them, liberal judges often make horrible habeas decisions, and little itty bitty bad guys catch a break as a result. It would be nice to say "we can't allow such mistakes to happen with the detainees," but that's ridiculous. We are going to allow such mistakes to happen thanks to the SCOTUS ruling, and we are going to deal with the consequences -- in this case, the deaths of our soldiers, our allies, or us.
I share McCarthy's concern that when that happens, Obama and the other politicians who brought us to this point will be shielded by the courts. Let's hope that as that happens, the communicators on our side will be more effective than the Bush communications team, and the American people will be reminded that it was politicians on the left, not the courts, that have the greatest measure of responsibility.