On Saturday, another former Justice Department official came out publicly and criticized the Supreme Court’s recent Boumediene decision. This time it was Andrew McBride, a former federal prosecutor and associate deputy attorney general who condemned the Court’s so-called rejection of “the considered judgment of…Congress and the president on an issue of national security.”
In a Wall Street Journal editorial, Mr. McBride writes that the decision to extend habeas rights to Guantanamo detainees was “a watershed in judicial hubris…continuing [the] trend in our society to convert every form of decision making into a lawsuit.” I guess the nine justices of our highest court were mistaken – interpreting the Constitution isn’t part of their job description after all.
We’re also sure Justice Kennedy and his colleagues will be happy to hear that Mr. McBride doesn’t believe they are “competent to make judgments about who is or is not an enemy combatant” and that they are confused by “the civilian criminal justice system and the waging of war.”
Of course, we find ourselves repeatedly questioning Mr. McBride’s competency – especially considering his many misstatements about Boumediene’s implications. It’s hard to believe that a man with such a long and distinguished legal career would actually believe that providing detainees the basic ability to challenge their detention in federal court is the same as imposing the “civilian criminal justice model” on the Guantanamo detention facility.
Probably the most bizarre aspect of Mr. McBride’s editorial is his attempt to draw a parallel between the treatment of Nazi prisoners of war and those being held at Guantanamo. “The idea of our judiciary protecting the ‘rights’ of the Nazis or the Viet Cong…is every bit as absurd as it sounds. But had Boumediene been decided in 1940, more than 400,000 Axis troops held…in this country during World War II would have had a right to challenge their detention in federal court.”
While this analogy may be rousing, it is also exceedingly flawed. Relatively few Guantanamo detainees were captured on the battlefields of Iraq and Afghanistan. Actually, Lakhdar Boumediene was arrested in Bosnia on suspicion that he was involved in a plot to attack the US embassy there – despite the fact that a court had already determined there was no evidence to support the charges.
Perhaps a more fitting comparison would be the internment of Japanese during World War II. These men – some actual citizens of the United States who had no connection to Japan’s military – were rounded up without charge and placed in prison camps until the end of the war. Perhaps if Boumediene had been decided in 1940, as Mr. McBride muses, we could’ve avoided one of the most disgraceful periods in American history.