Posted by
Defend America on Friday, July 17, 2009 8:09:59 PM
Judges Don't Belong on the Battlefield
Recent decisions have altered the way we're fighting in Afghanistan.
Earlier
this year, a Washington D.C.-based federal court extended the
constitutional right to habeas corpus to three foreign nationals
detained by U.S. forces in Afghanistan. The case, Maqaleh v. Gates,
represents yet another step in the federal judiciary's transformation
from Alexander Hamilton's "least dangerous branch" into a fully active
policy maker.
Historically, the constitutional right to habeas corpus -- an
ancient process permitting prisoners to challenge the legality of their
confinement -- was available only to individuals present in the U.S.,
or to American citizens held by federal authorities overseas. In a
leading World War II case, Johnson v. Eisentrager (1950), the
high court decided, with "bright line rules," that habeas corpus is
unavailable to foreign citizens held outside the U.S.
But last year, the high court reversed itself in Boumediene v. Bush.
The court held, by a 5-4 vote, that foreign nationals detained at
Guantanamo Bay, Cuba, also have a right to habeas corpus. Articulating
a new, multifactor test for determining who can receive habeas corpus
overseas, the court left open the possibility that aliens detained at
any U.S. controlled foreign facility could sue the government for their
release.
http://online.wsj.com/article/SB124779656089055677.html