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Since Sandra Day O’Connor announced her retirement from the Supreme Court of the United States, the media has been rife with assessments of her tenure and speculation about the judicial philosophy of her successor. Focus has been almost exclusively on domestic social issues, especially abortion, affirmative action, capital punishment, eminent domain. Absent from O’Connor-mania has been any attention to that part of the Supreme Court’s jurisdiction that embraces war, defense, foreign affairs and national security—a part that, because of the War on Terror, is vastly more important, and one that O’Connor’s replacement will inevitably have to make profoundly important decisions about.

The Constitution of the United States contains several explicit provisions relating to war, defense, foreign affairs and national security. For example, Article I delegates to Congress the power to provide for defense, declare war, raise and support armies, provide and maintain a navy and organize and activate reserve military forces. Article I even allows Congress to suspend habeas corpus during certain threats to our national security, and contains an additional grant of power to make all laws "necessary and proper" to implement the enumerated powers.

Article II makes the President chief executive, and Commander in Chief of all military forces. He can make treaties with the advice and consent of the Senate, and executive agreements having the force of treaties without Senate approval. In a provision unique to Article II, the Constitutional text provides that before one elected President takes office, he must "solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States." [Emphasis added]

Article III establishes the crime of treason, defining it as "levying war against [the United States], or in adhering to [its] enemies, giving them aid and comfort."

For over two-hundred years the nature, scope and constitutionality of these delegated powers, and others implied from them, have been adjudicated by the Supreme Court of the United States in its answers to questions such as:

    • Could FDR recognize the Soviet Union without Senate consent?
    • Could Harry Truman seize the steel mills during the Korean War?
    • Were the WW I, WW II, Korean and Vietnam War drafts constitutional?
    • Were the Korean and Vietnam Wars "constitutional"?
    • Could Carter erase private claims against foreign countries?
    • Were World War II Military Tribunals constitutional?
    • Was George W. Bush’s "enemy combatants" characterization legal?
    • Were the WW II treason prosecutions constitutionally defensible?


Recently, the Supreme Court decided three War on Terror cases that furnish us with a fearsome preview of decisions to come—unless President Bush’s replacement of Sandra Day O’Connor is not only a conservative on social issues, but someone who understands that the Constitutional powers expressly and impliedly delegated to Congress and the President are to be used to their fullest in fighting the War on Terror.

I have written about these cases before, but some of my thoughts warrant repeating because of O’Connor’s retirement from the Supreme Court.

The worst decision of the three was Rasul v. Bush, because it augured ill not only for the War on Terror, but as well for all future United States military actions. To understand the importance of Rasul and the danger it poses to America’s national security—a danger that is becoming more and more apparent every day with the Left’s legal, political and media attack on Guantanamo Bay—it is necessary first to examine the other two cases.

An American citizen, Jose Padilla (the so-called "dirty bomber"), was arrested in Chicago, brought to New York, later designated an "enemy combatant," and incarcerated in a South Carolina naval brig. His lawyer sought habeas corpus in the United States District Court for the Southern District of New York (in Manhattan), challenging Padilla’s detention. In Rumsfeld v. Padilla the Supreme Court held that Padilla’s lawyer had sued in the wrong jurisdiction. For the purpose of seeking habeas corpus, since the "immediate custodian" who had control of Padilla was the warden of the naval brig in South Carolina, that jurisdiction, not New York, was where the alleged dirty bomber’s case belonged. Accordingly, the Supreme Court told Padilla that if he wanted to challenge his detention, he would have to re-file his case in the South Carolina federal court. Padilla’s lawyers lost no time in filing a case in South Carolina, where a newly appointed federal judge would hear the case.

Flashback: Two years ago, U.S. Senator Lindsey Graham (R., S.C.), said this about a South Carolina state court judge named Henry Floyd: "I was pleased to testify on behalf of Judge Henry Floyd to serve on the federal bench," said Graham, a member of the Senate Judiciary Committee. "He has been a state judge for over a decade and received high marks for his performance from attorneys across the state. He has also demonstrated impartiality and civility to all who appear before him. I’m confident Judge Floyd will demonstrate the highest degree of professionalism and serve our state and nation well." On Graham’s recommendation, President Bush appointed Floyd.

On Tuesday, March 1, 2005, CNN On Line reported that:

The next case, Hamdi v. Rumsfeld, consisted of two rulings. The first was that the President could legally designate Hamdi and others (American citizens, and non-citizens alike) as "enemy combatants" who can be held without criminal charges being brought, and without being tried, until an armed conflict is ended, whenever that occurs. So far, so good. The second ruling was not so good. "We hold," said the Court, "that . . . due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker."

As the United States ends its fourth year in our formal War on Terror, there are many unanswered questions raised by the Hamdi decision which will have to be addressed in the next few years by the post-O’Connor and probably post-Rehnquist Supreme Court. Those questions, whose answers will profoundly affect our lives and liberty, include, but are no means limited to:

    • How "meaningful" is the opportunity to contest?
    • Is the enemy combatant limited to contesting the "factual basis" for his designation and detention, or can he make legal arguments?
    • What does "neutral" mean?
    • Must the "decision maker" be a judge, or are military officers sufficient?
    • Is the adjudicatory process criminal or civil?
    • Do enemy combatants have the right to an appeal, and if so where and to whom?
    • Do rules of evidence apply, and if so which?
    • Can the enemy combatant obtain discovery of the government’s case?
    • Must he be given exculpatory evidence?
    • What about other constitutional rights, like protection against self incrimination and double jeopardy?
    • Are enemy combatants entitled to compulsory process and to be confronted by witnesses?
    • How about being read their Miranda rights in some Afghanistan cave?  

The Hamdi case addressed the first-impression constitutional questions of who is an "enemy combatant," and to what due process he is entitled. It involved complex interpretive issues. It was decided by a majority that included the Court’s four liberals (Souter, Ginsburg, Breyer, and the half-liberals O’Connor and Kennedy. And because of the questions it left unanswered, it is crucial that in replacing O’Connor President Bush choose someone who understands and can support the proper nature and scope of presidential power that is essential in the midst of this War on Terror. (Perhaps because of the Court’s muddled ruling—"due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker"—last October, the United States shipped Yaser Hamdi back to Saudi Arabia).

In the third case, unlike Hamdi, one Shafik Rasul was captured outside our borders. He was incarcerated at the United States Guantanamo naval base, and eventually sought habeas corpus relief to challenge his detention.

When Rasul v. Bush reached the Supreme Court of the United States, the liberals were at it again. Stevens, writing for himself, Souter, Ginsburg, Breyer, and for the swing voter, O’Connor, ruled that: "the habeas corpus statute . . . extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts."

I have written elsewhere that "thus did the Supreme Court liberals, aided and abetted by . . . O’Connor and . . . Kennedy, open the doors of every federal district court in the United States to the Guantanamo detainees, many of them killers captured on the battlefield and elsewhere around the world, their murderous hands at least figuratively, and sometimes even literally, soaked with the blood of Americans, our allies, and innocent civilians. Armed with the Supreme Court’s Hamdi (due process) and Rasul (habeas corpus) decisions, and aided and comforted by radical lawyers . . . the flotsam and jetsam of Guantanamo and other enemy combatants held from Afghanistan to who-knows-where-else, can now forum shop among our ninety-four federal judicial districts in search of judges sympathetic to tales of mistaken identity and religious persecution—anything to justify the habeas corpus petitioners’ release."

What made possible the Hamdi decision, so disastrous to our War on Terror and dangerous to our national security? Four liberal justices (three appointed by Republican presidents) plus O’Connor, whose bleeding hearts saw terrorists not as the irredeemably savage killers they are—and who need to be slaughtered—but rather as domestic criminals, which patently they are not.

Although in the past, some difficult legal and constitutional questions concerning war, defense, foreign affairs, and national security, have been answered, others of an equally, if not more, troubling kind are on the horizon, because of the War on Terror. For example:

    • Are the anti-terrorism provisions of the Patriot Act constitutional?
    • Is it legal to target terrorists and others for assassination?
    • How much jurisdiction do American courts have over our prisoner facility at Guantanamo?
    • Can we legally turn suspected terrorists over to friendly countries for "aggressive" interrogation?
    • Is it legal for American agents to burglarize enemy diplomats in the United States?
    • Can we constitutionally detain deportable aliens until another county is willing to take them?
    • Should the Fourth Amendment criteria for surveillance search and seizure of suspected terrorists be different than for American citizens?
    • Will the Supreme Court hold that the United States is bound by Geneva Conventions provisions to which this country is not a party?
    • Are vague standards of "international law" to be used in undercutting America’s attempt to defend herself from terrorists who have only contempt for all law except their nihilistic and murderous reading of the Koran?

The answers to these questions and many more like them are crucial to our survival. They will be decided by the present seven member Court, plus President Bush’s replacements for O’Connor and probably Rehnquist. Everyone (even the democrats) expects Rehnquist to be replaced with another conservative, so that won’t be a net gain for the Right.

The O’Connor replacement is another matter.

The Left is already manning the barricades, trying to retroactively characterize O’Connor as a "mainstream conservative" so that they can attack any nominee to her right as an "extremist."

If, for reasons of political correctness, cowardliness, or anything else, Bush succumbs and the Left succeeds with their tactic to put another O’Connor on the bench, the Rasul case will be a harbinger of what we can expect from the Court’s liberals plus Sandra Day O’Connor II.

So as President Bush ponders his replacement for Justice O’Connor, let him study the Rasul decision. It better scare him as much as it scares the rest of us.

Calling the case a "law enforcement matter, not a military matter," a federal judge in South Carolina has ruled that the U.S. government cannot continue to hold "enemy combatant" Jose Padilla without charging him with a crime. The ruling says the government has 45 days to do so or Padilla would be eligible for release. The government vowed to appeal the ruling. The order from U.S. District Judge Henry Floyd sided with defense attorneys who advanced that argument in a hearing last month in Spartanburg, South Carolina, the jurisdiction where Padilla has been detained for 2 1/2 years as a military prisoner. * * *

"Since (Padilla's) alleged terrorist plans were thwarted when he was arrested on the material witness warrant, the court finds that the president's subsequent decision to detain (him) as an enemy combatant was neither necessary nor appropriate," the judge wrote.* * *

"To be more specific," Floyd wrote, "whereas it may be a necessary and appropriate use of force to detain a United States citizen who is captured on the battlefield, this court cannot find, in narrow circumstances presented in this case, that the same is true when a United States citizen is arrested in a civilian setting such as an United States airport." * * *

"If the law in its current state is found by the president to be insufficient to protect this country from terrorist plots, such as the one alleged here, then the president should prevail upon Congress to remedy the problem," Floyd wrote.

"It is true that there may be times during which it is necessary to give the executive branch greater power than at other times. Such a granting of power, however, is in the province of the legislature and no one else -- not the court and not the president," he wrote.

We can only hope that when President Bush ponders who will be his nominee to replace Sandra Day O’Connor (let alone appointments to federal district and circuit courts), he’ll remember that a trial judge he appointed (as political patronage to a Republican United States Senator) may have turned loose a terrorist who was allegedly part of a plot to detonate a dirty nuclear bomb in the United States.