WyBlog

Every terrorist gets a lawyer?

In a 5-4 ruling today the Supreme Court granted foreign terrorists held at Guantanamo Bay the right to challenge their detention in U.S. civilian courts. In his majority opinion Justice Anthony Kennedy (joined by Justices John Paul Stevens, Stephen Breyer, David Souter and Ruth Bader Ginsburg) wrote:

It's not enough that we're being targeted for destruction by Islamic terrorists. Now thanks to 5 liberal Justices we're facing destruction from Islamic terrorists with lawyers. The Islamists can't beat us with guns; they can't mount a frontal assault on our army; they can't attack us directly in our homes. But thanks to "lawfare" they'll soon have us on the ropes. Justice Scalia's minority opinion is quite clear on this point:

No prisoners of war in the history of mankind have ever been granted anything close to the plethora of rights now enjoyed by the Guantanamo detainees. When John McCain was a guest of the North Vietnamese he never envisioned being able to sue his captors; he was too worried about when the next beating would take place. Castro's dungeons currently hold thousands of political prisoners in deplorable conditions; nobody is suing the Cuban government for habeas corpus rights. Zimbabwe's Robart Mugabe locked up his political opponents and burned one man's wife alive. No lawyers rush to defend them.

The Guantanamo detainees were already granted the right to a hearing before a military tribunal as a result of the 2004 Rahul v Bush decision. When it comes to matters of National Security the military justice system is best equipped to vet sensitive evidence. The proceedings could be held in a controlled environment to protect the methods and sources used by our intelligence community. Civilian oversight was available via an appeal to the DC Circuit Court.

Today's ruling grants the terrorists the same legal protections as a purse snatcher or drug dealer caught by your local police. They are each now entitled to a hearing in open court. A hearing that anyone can attend. A hearing before a judge who probably has little or no experience with military or intelligence matters. Osama bin Laden can dispatch one of his minions to take notes and there is nothing we can do about it. The only alternative our government has left is to simply release the detainee. Osama will probably like that too. A newly released terrorist will be a fountain of information for Al Qaeda; he can brief them on our interrogation methods, the nature of the information we seek, even the mannerisms and idiosyncracies of the guards and staff. All of this information can be used against us by future terrorists.

Armed with this ruling the Lynn Stewart wing of our criminal defense bar will be emboldened to push for even more detainee rights. I can see them petitioning for suppression of a terrorist's statements because he was not properly Mirandized by a Marine during the heat of battle. The discovery phase of a civilian court trial could easily be exploited by organizations with a political agenda to extract damaging or embarrassing information about our goverment institutions. The New York Times has no qualms about exposing the inner workings of our intelligence services if they believe that it will cast President Bush or Senator McCain in a bad light.

The proponents of this ruling see it as a victory over what they perceive as abusive practices promulgated by the Bush Administration. They're only half right. The real winners are the terrorists, and the ultimate losers will be the American people.

Posted at 17:14 by Chris Wysocki   [/rants]   Comments | Archived | Perm Link |   |   Tweet