Boumediene v Bush

I can't say I understand why the Gitmo cases are named as "Terrorist Name" v Bush. The Congress enacted the DTA law that was being challenged in Boumediene v Bush, primarily at the behest of the Supreme Court. Viewed properly, Boumediene was challenging the law of these United States of America, as the Islamic terrorist war against America began long before George W. Bush took the oath of office. And it is the United States of America, not just George W. Bush, who has lost handily in the exercise of raw judicial activism by a rogue majority on the Supreme Court.

There is no greater threat to our republic than judicial activism. What is judicial activism? It is substituting a personal policy preference for the law, or twisting the law or Constitution to achieve the personal policy preference. Judicial activism can occur on both sides of the political spectrum. Those who decry judicial activism should abhor it whether it's liberal or conservative if they seek to maintain any sense of intellectual honesty. The biggest threat in the current era is liberal activism; namely, inventing constitutional rights where none exist, or tossing the rule of law to implement a personal policy choice. Boumediene v Bush is a perfect example of liberal activism at its absolute worst.

For the first time in the history of the right of habeas corpus, our Supreme Court has seen fit to afford this American constitutional right to alien enemy combatants. We're not referring to American citizens caught on a foreign battlefield. We're talking about alien enemies of the United States caught in battle waging war against our troops on foreign soil. This is absolutely insane. The purpose of habeas is to ensure American citizens the right to face his or her accuser, to produce the body as it translates from latin, in order to challenge incarceration. The American court system is delicately balanced in order to ensure this right to our citizens as protected by the Fifth Amendment to our Constitution. Now, the Supreme Court has seen fit to discard two hundred-plus years of precedent as well as the age old understanding of English common law in order to bring under the umbrella of our founding document those who seek to destroy the country that document founded, and would murder instantaneously the People who framed that very document. If this isn't an exercise of raw judicial activism, the term no longer holds any meaning. But alas, it does.

Chief Justice Roberts has proven himself to be faithful to the Constitution, and in an absolutely withering dissent, joined by the only 3 other sane members of the Court, articulated why the majority's reasoning was NOT faithful to the law or the Constitution, and that the DTA had established a rigorous statutory scheme to afford alien enemy combatants more protection than they had ever been afforded before in the history of our republic. But this wasn't good enough for the majority. They had to go one step further, create a mockery of the rule of law, the separation of powers and the Constitution itself. If our Constitution protects terrorists in this manner, who on earth CANNOT claim the same constitutional protections when coming in contact with any American citizen, whether or not they're on sovereign American soil? This is the fundamental breaking point with all of the laws and precedent established throughout our nation's history: an enemy alien combatant captured on foreign soil waging war against the United States is NOT to be afforded the constitutional right of habeas corpus; if he or she had been captured within the United States, the conversation would be different. Will our armed forces now be required to read these terrorists their Miranda rights? Collect evidence? Cease interrogation immediately upon the request of counsel? These are fundamental questions that derive specifically from the majority's twisted opinion but they didn't even bother to answer a single one of them. They just overruled the two other co-equal branches of government and usurped the power to make a sort of war and foreign policy soup for themselves. And the American people are the ones lucky enough to get to eat this poisonous soup.

Justice Scalia wrote in his dissent that the nation would forever regret the Court's decision in Boumediene v Bush. We can only hope the the two other branches of our constitutional government discover the backbone of President Andrew Jackson who said, in response to Chief Justice Marshall's ruling in Cherokee Indians v State of Georgia, "John Marshall has made his decision, now let him enforce it." Just so. Justice Kennedy has made his decision in Boumediene v Bush, now let him enforce it. And let the impeachment proceedings of the rogue majority of the Supreme Court begin without delay.