How ridiculous has the judicial intrusion on military action become? A federal judge ruled today that terrorists captured on foreign battlefields and held by the military should have access to American courts. Not only does that arrogantly assume American sovereignty over Afghanistan, but it also violates the Geneva Convention:
A federal judge ruled on Thursday that prisoners in the war on terror can use U.S. civilian courts to challenge their detention at a military air base in Afghanistan.
U.S. District Judge John Bates turned down the United States’ motion to deny the right to three foreign detainees at Bagram Airfield in Afghanistan.
The U.S. Supreme Court ruled last year that detainees at Guantanamo Bay, Cuba, have the right to challenge their detention in court. But the government had argued that it did not apply to those in Afghanistan.
Bates said the cases were essentially the same and he quoted the Supreme Court ruling repeatedly in his judgment and applied the test created by it to each detainee. It is the first time a federal judge has applied the ruling to detainees in Afghanistan.
This is, simply put, a war by the judiciary on American conduct of war. The Constitution gives the judiciary no role whatsoever in the prosecution of war or in handling the prisoners our military captures. War powers are explicitly split between the executive and legislative branches. The practical reading of this order is that the federal courts have some sort of jurisdiction over military activity in Afghanistan, which proceeds from the equally fallacious rulings about Gitmo.
Not only does this violate the separation of powers in the Constitution, it actually violates the Geneva Convention. Article 84 states clearly that prisoners of any stripe shall not get tried in civil courts:
A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.
In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.
We do not try our military personnel in civil court for offenses committed in the service. Therefore, we do not have the right to try prisoners in our civil courts, either.
What does this order do? It interferes with military operations by treating captured prisoners as having Constitutional guarantees intended for the maintenance of civil order. Prisoners now will get the right to habeas corpus, turning soldiers into police officers and key intelligence into discovery material. No one can fight a war with a Miranda warning in their back pocket, nor should they.
The net effect of this will be to push the military into killing its targets rather than capturing them, or to push renditions instead. Congress needs to step in and stop this ridiculous overreach by the federal judiciary.