"Nothing but Heartaches" by the Supremes

by Rick Francona

No, it’s not the 1965 hit single by the Motown recording group, but a potentially disastrous recent ruling of the United States Supreme Court (Boumediene v Bush). This creative interpretation of the law in effect gives enemy combatants captured in the act of fighting American troops on a battlefield halfway around the world the same rights in federal courts as American citizens.

This is the court's third attempt to hamstring the American military in the fight against terrorism. In 2004’s Rasul v Bush, they ruled that U.S. laws did apply to detainees held at Guantanamo. Although the treaty with Cuba over Guantanamo Bay grants the United States "complete jurisdiction" over the base while Cuba has "ultimate sovereignty,” the court found that Guantanamo was "effectively part of the United States." I wonder if they ran that by Fidel Castro?

In 2006, they sided with Usamah bin Ladin’s former driver, declaring in their review of Hamdan v Rumsfeld that the military commissions proposed by the Department of Defense did not have Congressional approval and were thus an insufficient means of determining the status of individual detainees. In direct response to the court’s recommendation, Congress enacted legislation establishing the military commissions to remedy that finding.

Surprisingly, Congress doing specifically what the court suggested was not enough. In this recent ruling, five of the justices decided that stateless fanatic zealots determined to kill Americans with impunity anywhere in the world, are entitled to challenge their detention in U.S. federal court using the right of habeas corpus - just like the American citizens they were trying to murder. This is the same syndrome that we saw with the Clinton administration - treat terrorists like criminals. The strategy then was to arrest them and try them in court instead of hunting them down and killing them. On September 11, 2001, we saw how well that strategy worked.

What's next? "Mirandize" all detainees? Extend the same protections to enemy prisoners of war? Conduct interrogations only in the presence of counsel? Allow law suits against the soldiers who detain terrorists? We are creating a potential no-win situation for our field commanders.

I see two solutions here:

- Declare the detainees to be enemy prisoners of war, afford them the Geneva Accords protections they are already receiving, and hold them until the war is over. No commissions, no hearings.

- Take no more al-Qa'idah/Taliban prisoners.

Pick one - either works for me.