The Courts and Guantanamo Bay

I wanted to share with you a brilliant piece by Newt Gingrich talking about the recent court decision regarding the detainees at Guantanamo Bay.  Newt is an accomplished student of history and he understands that if we don’t learn from history we are destine to repeat it.

 Please take a moment to read this and contact your elected officials to encourage them to act on this.

A Decision Which Cannot Be Allowed to Stand

Finally, there has been a lot of commentary about the Supreme Court's narrowly divided decision last Thursday (Boumediene v. Bush) to allow enemy combatants like those terrorists being held at Guantanamo Bay to challenge their detention in U.S. courts.

Let me be clear where I stand: This is among the most arrogantly irresponsible Supreme Court decisions in American history and it cannot go unanswered by the other two branches of government. It is an appalling dereliction of duty if the executive and legislative branches fail to explicitly and swiftly reassert their sole dominion over the national security policy of our country.

Congress and the President Need Not Acquiesce to a Tyrannical Court

There is significant precedent in American history for believing that the legislative and executive branches can act to restrict the reach of judicial decisions as well as force the judicial branch into changing its views when they are out of touch with the constitutional values, practices, and traditions of America.

President Thomas Jefferson and the Jeffersonians successfully fought back against the Federalists' use of the courts to impose their agenda over the will of the people. After the Federalists lost the election of 1800, but before the new Jeffersonian congressmen took office, the Federalists more than doubled the number of federal circuit judges (from seventeen to thirty-five) and packed them with loyal Federalists. The Jeffersonians reacted by simply eliminating all eighteen new federal circuit court judgeships.

President Abraham Lincoln refused to treat the Dred Scott decision, which both declared unconstitutional a federal law that had limited the extension of slavery and that blacks were not citizens under the Constitution, as legally binding on the executive branch. For example, his administration issued U.S. passports to free blacks and signed legislation that placed restrictions on slavery in the federal territories, positions at odds with the Dred Scott decision.

And in June 1942, when German spies who had landed in the U.S. to carry out acts of industrial espionage were captured by the FBI, President Franklin D. Roosevelt acted swiftly to signal to the Supreme Court that he was not going to entertain court intervention. First, FDR issued an executive order on July 2, 1942 that the detainees were to be subject to trial immediately by military commission. FDR also made clear to his attorney general what his reaction would be to any writ of habeas corpus: "One thing I want clearly understood . . . I won't give them up . . . I won't hand them to any United States marshal armed with a writ of habeas corpus." FDR understood the Supreme Court was supreme in the judicial branch but it was not supreme over the other two political branches.

The executive and legislative branches possess clear constitutional powers to check and balance decisions of the judicial branch. The Boumediene decision requires that the executive and legislative branches act to reestablish a constitutional balance among the three branches. I will be writing more about this subject in weeks to come.