Is That Legal?

Prof. Muller:

Far from idoiotic, the main point of the Malkin blog post (which in your ongoing animus toward Ms. Malkin you apparently misunderstood) was to emphasize the observations of Andrew C. McCarthy relative to the need for a new SC justice who realizes that our country is at war and knows the difference between alien enemy combatants in military custody and ordinary criminal suspects.

Mr. McCarthy is not without credentials. He was senior trial counsel at the U.S.Attorney's Office for the Southern District of New York, as well as an adjunct associate professor of law at Fordham University and New York Law School. From 1993 through 1996, he led the prosecution against the jihad organization of Sheik Omar Abdel Rahman, in which a dozen Islamic militants were convicted of conducting a war of urban terrorism against the United States.

As Mr.McCarthy wrote: "...in Rasul, the Court held... that the alien enemy combatants detained overseas in wartime and held outside (or what was up until then regarded as outside) the jurisdiction of the U.S. courts were permitted to challenge their detentions in federal court...
Exactly what kind of procedures and protections are our enemies entitled to in these unprecedented court proceedings? Do they get counsel? Do they get discovery — including battlefield intelligence? Are these to be full-blown trials in which we take soldiers off the battlefield so that they can testify about the circumstances of the particular enemy combatant's apprehension during this firefight or that? How much, in the middle of a war, should federal judges be able to second-guess commanders in the field?"

The insanity of such decisions does, indeed, cry out for more common sense. The suggestion that whomever is selected to replace O'Connor should know the difference between war and peace deserves more than trivialization and ridicule.

Au contraire, Commander.

Malkin's incessant fear-mongering deserves far more ridicule and condemnation than I would be able to muster at this little blog, even if I devoted every single post to her writings.

It's OK, she's only talking about "illegal" enemy combatants. So our captives get all of the rights we've guaranteed through the treaties our past Presidents have signed and our past Senates have ratified. That is, unless one man arbitrarily decides, without hearing or possibility of review, that they're "illegal". Then they get the waterboard and we beat them until they die. What could be more just than that?

Commander:

Reading Malkin's post reminded me a line from the book and movie, the Godfather. After Michael Corleone takes over the Family, he fires Tom Hagen because he's not a "wartime consigliere." Tom wasn't tough enough when it came to rubbing-out the opposition.

Two points. First, the folks on the right carp about "strict construction" of the Constitution or "originalism" -- code for resurrecting a "lost Constitution" that was the progenator for Dred Scott, Plessy, Lochner, Coppedge, Adair, Schecter Poultry and Hammer v. Dagenhart.

Is Malkin's point that a "wartime consigliere" on the SCt will move us closer to strict construction? Or is her argument that, "who cares what the Constitution says, what we need is someone willing to interpret it in a wartime way" -- that is, unchecked executive authority.

Second, on appointing a wartime consigliere tough on "enemy combatants." Sorry, you just can't convince me that locking up Americans indefinitely and without legal recourse because George Bush says they're enemies of the state is a particularly good direction to go -- under any theory of constitutional law.

Maybe I'm just a pollyanna, but that sort of legal regime sounds awfully like the one in North Korea.

And do you really think the phrase "enemy combatant" wouldn't morph into "enemy of the state" and then into "enemy of the party" and then into "enemy du jour"?

What we need on the Supreme Court is someone willing to protect civil liberties. That doesn't mean cutting loose terrorists. It means ensuring that some PUBLIC process exists to protect us from the historical compunction in the ruling class to exercise unchecked authority against the citizenry.

I'm a "wartime left-wing agitator!" ;-)

"Mr. McCarthy is not without credentials."

True, he was an alcoholic liar, but he had degrees!

Different McCarthy, Kristjan