District Attorney Jack McCoy steps back behind his desk, having just finished delivering the final summation to a spellbound jury. Racks of television lights glare from two corners of the New York courtroom as the grizzled prosecutor glances at the infamous defendant who wears a smug half-smile. Both the defendant and his attorney sit upright in their wooden chairs, confident that justice will be done.
It only takes the jury five hours to deliberate. McCoy realizes this is not a good sign. The highly diverse jury has reached a conclusion McCoy knew was in the offing. What choice did they have considering the disjointed evidence he was able to present? Taken on face value, he would have difficulty rendering a guilty verdict if he were in their shoes.
As the foreman prepares to read the verdict, the defendant is asked to rise and face the jury box. His eyes are coal-black and filled with rage as he looks at the infidels. If given half a chance, he would slit their throats one by one, cameras rolling — all in high-def of course.
“Mister foreman, how do you find the defendant on the counts before the court?” asks the somber judge, knowing that history will record that it was his courtroom that set free a monster. “Your honor, we find the defendant, Osama Bin Laden, not guilty on all counts,” says the foreman in a sheepish voice cracking with emotion.
“Mr. Bin Laden, this court has found you not guilty. You are free to go.”
“Thank you judge. Thank you American justice. I will be seeing you all again soon,” says Bin Laden, turning to embrace his ACLU lawyer. “Life is good for enemy combatants!”
Think this is a fictional script getting ready to play out during next season’s Law & Order? Don’t count on it.
On June 12, a controversial 5-4 decision from the United States Supreme Court ruled that alien enemy prisoners captured by the U.S. military in a war authorized by Congress, have now been granted Constitutional rights to petition our courts for their release.
What is so painfully ironic is the Court totally invalidated some of the most generous protections for enemy alien prisoners of any country in the world. Laws they had implored Congress to enact. Laws never previously extended to enemy operatives in American history. The Boumediene v. Bush ruling by the Court states that foreign terrorism suspects held at GuantA?namo Bay have constitutional rights to challenge their detention there in U.S. courts. The order to grant habeas-corpus rights to unlawful enemy combatants breaks from precedent. This new ruling overturns the 1950 case Johnson v. Eisentrager, in which the Court ruled that alien enemies had no access to U.S. courts in wartime and that when captured and imprisoned abroad, they had no right to a writ of habeas corpus in a U.S. court.
Writing for Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, Justice Anthony Kennedy says that Americans must regard enemies as if they were no worse than criminal defendants. These justices, who have never seen a battlefield, now say alien combatants are entitled to all the legal processes afforded American citizens — like reading them their Miranda rights, access to discovery, witnesses, counsel, a valid trail of evidence — which, for all practical purposes, will make it impossible to detain them without shutting down interrogations prematurely and informing the enemy of our national-defense secrets.
Given these new marching orders from the Supreme Court, are military personnel now going to be required to take notes in the field regarding the location, dress and comportment of captives for later use in the ‘trials’ paid for by U.S. taxpayer dollars? Do they preserve a chain of custody on a firearm or an IED seized from an enemy combatant?
We have set up impossible scenarios for our military leaders. Trying to relate battlefield experiences, procedures and rules of engagement to a civilian court will be a costly nightmare that will also impact our national security.
If you have any questions or comments for Steve Lasky regarding this or any other security industry-related issue, please e-mail him at [email protected].
