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JANUARY 22, 2002



It is not even six months since the devastating events of September 11th, and already the America-last movement - predictably- struggles to find a grandstanding "issue" to undermine the Bush Administration's war on terrorism. In a reprise of their conduct during the Vietnam War, along with sits-in, lighting candles, offering prayers and incantations - "give peace a chance," "no 'eye for an eye'," "let's not become like them," "violence never solved anything" - the movement offers their usual stale, naive, anti-American slogans. But this time - thankfully, and unlike during the Vietnam War - they've run into a virtually solid wall of indifference from the American public and its elected representatives. Although - also predictably - the movement enjoys considerable, and sympathetic, media support, as it did during Vietnam, this time its angst is DOA.


That does not stop them, as witness the current grandstanding by, among others, a notorious lover of those who hate America: Ramsey Clark - and, like Jane Fonda, a sojourner to North Vietnam during the war, while American POWs were held captive there.


Son of a justice of the United States Supreme Court, and himself a former Attorney General of the United States, Clark, since leaving office some three decades ago, can be counted on to show up whenever and wherever America is hated most - North Vietnam and revolutionary Iran being just two examples. In Hanoi, Clark, like his fellow citizen, Jane Fonda, snuggled up to the Communists. In Iran, Clark courted the Ayatollahs. Now - apparently troubled not in the least by the atrocities committed in Afghanistan by the Taliban and al-Qaeda terrorists - Clark and his cohorts have taken a page from the Left's unsuccessful Vietnam-era strategy. They are trying to use the courts to advance their political agenda - this time, by complaining about the government's treatment of the Guantanamo Bay prisoners.


According to an Associated Press report, a habeas corpus case has been filed in Los Angeles federal court by a coalition of "clergy, professors and civil rights attorneys" who are seeking to have the Guantanamo detainees brought to a civilian court and presented with charges. One could write a law review article about the absurdity of this demand by people who ought to, and probably do, know better.


At the threshold, let's dispose of some important questions, a negative answer to any one of which could dispose of the case. Do the petitioners have a right to legally represent people they have never met? Can there be proper venue in a Los Angeles federal court regarding persons held in Cuba? Does the writ of habeas corpus apply to foreign military detainees in general, and the Guantanamo terrorists in particular? Do "clergy, professors and civil rights attorneys" possess "standing to sue" (i.e., a sufficient personal stake in the case's outcome) on behalf of strangers?


However, there is one fundamental constitutional principle that, alone, is enough to doom this attempt by the America-haters to use the courts to advance their political agenda. That principle is found in the judicial article: Article III of the Constitution of the Untied States of America. The principle is called the "political question" doctrine - but a better label would be "non-justiciability," because it refers to issues that are simply not appropriate for judicial determination. (Yes, even in this day when it seems that every gripe is fit for judicial resolution, there are still many issues not suitably decided in a court of law).


Ironically for Clark, a sizeable body of law on non-justiciability arose out of the Vietnam War. In essence, a non-justiciable "political question" is one that is the province, not of the judiciary under Article III of the Constitution, but rather the business either of Congress under Article I or the Executive/Commander-in-Chief under Article II. It does not take much insight to appreciate that the business of war is peculiarly an Article II affair, given that it expressly makes the president Commander-in-Chief. As such, President Bush has delegated to the Secretary of Defense the power to deal with captured enemies. Mr. Rumsfeld has done just that, including incarcerating them at Guantanamo. In a famous case from the Vietnam War era, United States v. Sisson, United States District Judge Wyzanski dismissed a challenge to the War's constitutionality because - like the Guantanamo case brought in Los Angeles - it involved "just the sort of evidence, policy considerations, and constitutional principles which elude the normal processes of the judiciary and which are far more suitable for determination by coordinate branches of the government."


In seeking a writ of habeas corpus to bring the Guantanamo Taliban and al-Quaeda terrorists before a civilian court - and thus have that court interfere with the Commander-in-Chief's power under Article II - Ramsey Clark and those of his ilk would have a federal court in California decide a non-justiciable question, and thus violate the fundamental Constitutional doctrine of Separation of Powers. Imagine having a federal judge in California dictate to the Bush Administration such "policy considerations" as what food the detainees will be served, the number of showers per week they'll be allowed, whether they can watch cable TV and use exercise equipment. And how about conjugal visits?


How presumptuous - and, given the mindset of the detainees, how dangerous - it is for "clergy, professors and civil rights lawyers" to try to invoke the power of the federal judiciary in a meddlesome attempt to dictate policy to the Department of Defense!


Ironically, yet appropriately, what ought to necessitate dismissal of Clark's and his friends' attempted political use of the federal court is the constitutional doctrine of "political questions."