Reprinted by permission from Imprimis, a publication of Hillsdale College
In an article adapted from a speech delivered on March 5, 2010 at the Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., Mr. Andrew C. McCarthy gives several insights into the effect of the phenomenon of "Judicial Legislation" and the evolution of the process over the last 70 years:
It has become fashionable these days to invoke the “rule of law” as if it means the rule of lawyers—and in particular, the rule of judges. But that has never been the term’s meaning. In the U.S., the rule of law is embodied in the Constitution and resides in the statutes, treaties, rules, and regulations adopted pursuant to the Constitution. The rule of law does not refer either to judges or to elected officials, who are themselves servants of the Constitution.
It has also become trendy in recent years, especially among our legal elites, to declaim piously that “the Constitution is not suspended in wartime.” And, of course, no true patriot believes that the Constitution could ever be suspended. But the Constitution is not—nor has it ever been—the imposition of judicial rule. Indeed, the Constitution imposes strict limitations on the judicial power, just as it does on Congress and the executive branch. It has never been the case that where judicial power ends, anarchy begins.
Mr. McCarthy also looks into the specifics of the recent case of Umar Farouk Abdulmutallab, who could have provided an intelligence coup and possibly large progress in the continuing conflict against Islamic Terror. He contextualizes the US response to Abdulmutallab ( the "Underwear Bomber") with a comparison to the response of Franklin D. Roosevelt in dealing with a similar challenge in 1942:
President Roosevelt grappled with similar challenges during World War II. In June 1942, when the outcome of the war was anything but clear, eight German saboteurs were captured after landing on the coasts of Long Island and Florida. They had been sent by Hitler to commit acts of terrorism against civilian infrastructure, and Roosevelt decided to make an example of them. He wasn’t concerned with the fact that the federal courts were open and functioning. Nor was he swayed by the fact that one of the saboteurs was an American citizen. He directed that all eight of them be detained as enemy combatants and tried by a military commission. Nor did he perceive the need to festoon the proceedings with trappings of a martial setting: the trial took place in an FBI conference room in what is now the Robert F. Kennedy Department of Justice Building.
The saboteurs’ defense lawyers naturally cried foul, filing a petition for a writ of habeas corpus in the Supreme Court and claiming that this military commission violated the Constitution. Upon hearing of the petition, Roosevelt summoned Attorney General Francis Biddle and directed him to tell the Chief Justice that he did not care what the Supreme Court thought; that the Constitution made him, not the justices, responsible for the lives of the American people and the successful prosecution of the war; and that he would not be releasing the prisoners, regardless of the Court’s disposition of the case.
This provided a judicial “king has no clothes” moment of clarity such as we have not had in the ensuing 68 years. The fact is that courts have no power to enforce their edicts.
How do we get from the decisive actions of Roosevelt to the Obama administration’s stunning mishandling of Umar Farouk Abdulmutallab? Recall that this terrorist tried to detonate a chemical bomb on an airplane—an attack that would have killed all 288 innocents onboard and an untold number of Americans on the ground. Recall that he was a trained operative of al Qaeda—a transnational terrorist network with which we are at war. Recall that he was a Nigerian national sent from Yemen to attack us, and had no claim whatsoever on the protections of civilian due process. What’s more, our intelligence community tells us that Yemen is now one of the prime launch points of Islamist terror. Abdulmutallab had spent four months there. He knew the training camps, the trainers, and the identities of other terrorists (evidently, scores of them). In light of these facts, his capture alive should have been one of the great intelligence coups of the war. Instead, he was questioned for a mere 50 minutes before being given Miranda warnings and a lawyer—at which point he invoked his supposed right to remain silent, was consigned to the civilian justice system, and was charged in an indictment that gave him plea-bargaining leverage in any further negotiations over what he would tell us.
This approach was not only unnecessary, it was wrong. The terrorist could and should have been designated an enemy combatant and interrogated without the interference of a lawyer or the complications of a civilian prosecution. Even if one believed—as the Obama administration says it believes—that it is important to our reputation around the world to endow him with the rights of the Americans he was trying to slaughter, there was no legal requirement that that be done immediately. He could have been turned over to civilian authorities two or three years from now, once his intelligence reservoir was fully tapped. We’d have lost nothing in the meantime except the ability to introduce any confession at trial—and no confession is needed when a terrorist tries to bomb an airplane in front of nearly 300 witnesses.
I have always found Imprimis, a publication of Hillsdale College, to be both interesting and informative. The entire article can be read HERE.
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