Thursday's 5-4 decision awarding "unlawful combatants" at Gitmo --terrorists-- the "privilege of the writ of habeas corpus" has left millions of Americans stunned. What in the world is the majority of the Supreme Court thinking? Justice Scalia, writing in dissent, was blunt:
America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. See National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, pp. 60–61, 70, 190 (2004). On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania. See id., at 552, n. 9. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed.
The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.
These are harsh words, unusually so even for ordinary debate, but amazingly so among the nine. Justice Scalia is quite obviously as frustrated with his aging colleagues as are the vast majority of Americans. There’s a war going on. These terrorists and their still-at-large allies are trying to kill us. The president and the Congress, including many Democrats, took the blueprint the Court delivered the last time it addressed the matter and passed a statute specifically tailored to the demands the Court’s five justices laid out. Now that Supreme Court-mandated approach has been struck down, and the “great writ” is open to the worst killers who have ever set their sights on the homeland.
What this means, of course, is more litigation, more delays, and more confusion. Only one thing is certain: Our terrorist enemies still at large must be amazed, amused and encouraged by the continued insistence by legal elites that they be treated like petty American criminals rather than fanatical killers eager for martyrdom. It is as though the five justices and their clerks are wholly ignorant of the rising stack of books and flood of articles detailing the nature of the enemy and their creed of death.