.HEAD: Advocate of Judicial Restraint Stresses Its Relevance in Wartime

The Washington Times (Washington, DC), April 21, 2010 | Go to article overview

.HEAD: Advocate of Judicial Restraint Stresses Its Relevance in Wartime


Byline: Frank J. Gaffney Jr. , SPECIAL TO THE WASHINGTON TIMES

There is arguably no more influential conservative in America today than Reagan administration Attorney General Edwin Meese. To paraphrase an old marketing slogan, when Ed Meese talks, people listen. Rarely has such attention been more warranted than now, as President Obama prepares to select a new Supreme Court nominee whose views on national security and the law may have enormous bearing on the prospects for our victory in this war for the free world.

After all, as Mr. Meese observed in a major policy address before an American Bar Association audience on Thursday: In four major cases, the Supreme Court has involved itself in the conduct of this war in what has been a change in terms of the constitutional history and the traditions of the country.

The lack of judicial restraint, according to the nation's one-time top law enforcement officer, has been compounded further by the lack of clarity on the part of the executive branch with respect to key aspects of this war. Particularly egregious has been the Obama administration's determined effort to obscure whether we are even at war and with whom.

Mr. Meese observed: "As the Wall Street Journal stated just last week, 'The United States cannot effectively combat the root causes of Islamic extremism by ignoring them. The war on terror won't be effective if this country overlooks the nature of the enemy and his motives.'

We must accurately recognize that we are in a war caused by certain belligerents who are seeking to impose their notions of Shariah law by threats, violence and intimidation on as much of the world as they possibly can, and who are committed to hostile action against those nations and those forces, including the United States, who they believe stand in their way.

The danger posed by such foes is compounded by the fact that they generally are illegal enemy combatants. Mr. Meese properly says they must be so characterized under the internationally recognized laws of war because of the way in which they conduct themselves, which makes them ineligible to be treated as prisoners of war, which have certain privileges under the Geneva Conventions. It is because they don't operate in uniform, because they don't operate in military units that are subject to command and control and military discipline, because they do not carry their weapons openly, because they violate the laws of war by specifically targeting civilians.

Faced with these sorts of enemies and their preferred, illegal tactics, Mr. Meese concludes, Obtaining information from captured combatants is a critical part of gaining the kind of intelligence we need. In the case of enemy aliens, it's appropriate that we use extensive interrogation and that we have continued detention by military authorities. It's also important that we hold these captives until they are no longer a threat.

Reagan's counselor and attorney general then laid out four enormously important suggestions to help ensure we have the consistency, fairness and constitutional clarity so urgently required in this time of war:

* United States citizens and foreign nationals legally in this country, [who] were captured anywhere except on the battlefield, should be handled by the criminal process in civilian courts. …

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.HEAD: Advocate of Judicial Restraint Stresses Its Relevance in Wartime
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