Don’t You Know There’s a War Going On?

I am sending U.S. Supreme Court Justice Anthony Kennedy a framed copy of a photograph of the remains of the World Trade Center West building after the 9/11 attacks with a note "Don't You Know There's A War On?"

The Real Headline: "U.S. Supreme Court Doesn't Think We Are At War with Jihad"

On June 12, 2008, the majority on the Supreme Court ruled in "Boumediene v. Bush," that habeas corpus rights guaranteed to American citizens under the Constitution will be extended to foreign Jihadist enemy combatants currently held at the Guantanamo Bay detention center. Justice Anthony Kennedy wrote for the majority of the Supreme Court stating that "[i]t is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution." (Justice Kennedy Majority Opinion, page 41).

Justice Anthony Kennedy delivered the majority opinion of the Court, in which Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, with Justice Souter providing a concurring opinion. Chief Justice John Roberts and Justice Antonin Scalia both filed dissenting opinions; the other two dissenting judges were Justices Clarence Thomas and Samuel Alito.

In this decision, the Supreme Court majority tells the American people to ignore that, in no time in American history have habeas corpus rights been granted to unlawful foreign enemy combatants, to ignore that during WWII the Supreme Court ruled that unlawful combatant saboteurs could be denied habeas corpus, to ignore that during the Civil War that habeas corpus was suspended for American citizens, to ignore that the Supreme Court ruling seeks to give foreign enemy combatants more rights than illegal aliens. Supreme Court Justice Kennedy ignores the reality that the U.S. Constitution was for American citizens, not foreign enemy combatants during wartime, by arrogantly demanding that "[t]he laws and Constitution are designed to survive, and remain in force, in extraordinary times."(Justice Kennedy Majority Opinion, page 70).

Perhaps Justice Kennedy might actually read the U.S. Constitution. It states that "We the People of the United States...secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." Where does that call for extending such rights of American citizens to enemy foreign combatants during war? Where does Article I, Section. 9. Clause 2 of the Constitution say enemy combatant Jihadists at Guantanamo Bay have a "Get Out of Jail Free" pass from the Constitutional clause that allows the government to suspend habeas corpus when "the public Safety may require it"?

The Supreme Court ruling will allow foreign enemy combatants the right to appeal their detention to U.S. civilian courts, and perhaps obtain their release back to attack America again. While the existing military trials are to continue, if such enemy combatants are convicted, analysts have stated that they will also be to appeal their convictions to civilian courts as well. Some 270 enemy combatants are currently held at Guantanamo Bay. As dissenting Justice Scalia stated in his dissenting opinion, "[a]t least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield...These, mind you, were detainees whom the military had concluded were not enemy combatants." (Justice Scalia Dissenting Opinion, pp.3,4).

Supreme Court Justice Kennedy writes what may be the epitaph for an America in mass denial regarding the global threat of Jihad when he states regarding the enemy combatants: "none is a citizen of a nation now at war with the United States." Over seven years after the 9/11 attacks, how could there be any American citizen that completely uninformed about the world and the transnational Jihadist threat? Justice Kennedy also goes on to whine that the enemy combatants have been held in "the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history." (Justice Kennedy Majority Opinion, page 41). His written contradiction is staggering - on the one hand he claims that the enemy combatants are not a "citizen of a nation now at war" but on the other hand that the "conflict" under which they are being held is "among the longest wars in American history." Of course, Justice Kennedy has no idea who or what America is fighting. What is he doing holding a high office in the U.S. government, over 7 years after 9/11?

The Deafening Silence of the Public and the Braying of the Spin Media

There should be crowds of people protesting outside the Supreme Court building with placards demanding "Never Again, Never Forget." There should be pundits in every newspaper and every television channel denouncing the Supreme Court's decision. There should be calls for the impeachment of the Supreme Court justices in the majority who made this ruling. But for the most part, with the exception of few outraged commentators, there is a deafening, sickening silence, even a defeated, resigned acquiescence. Much of the nation is already accepting such defeats, and moving on with the mundane aspects of life. After all, there is nothing they can do about it. It is "somebody else's problem."

Moreover, the mainstream media has it all figured out - it is "George Bush's problem"... the mantra that has been drummed into the public media and airwaves for the past seven years every time a difficult, unpleasant reality had to be faced... Bush, the convenient scapegoat for the media to enable denial about global Jihad.

The mainstream media has its bizarro-world spin on the vulgarity of giving American constitutional rights to foreign enemy combatants during wartime:
-- New York Times: "Justice 5, Brutality 4"
-- New York Times: "court repudiated the fundamental legal basis for the Bush administration's strategy"
-- Washington Post front page: "The Supreme Court rules Bush can't trash American values"
-- Washington Post's Eugene Robinson: "the high court made clear that the Decider has no authority to trash the fundamental principles of American jurisprudence"
-- Associated Press: "Court says detainees have rights, bucking Bush"
-- CNN: "Watch how the 5-4 ruling is a major blow for the Bush administration"
-- and last, but not least, to prove that the some on the right can be as blind as some on the left...
-- Washington Times: "War position shapes lawmakers' view of ruling"... "Whether politicians considered Thursday's Supreme Court ruling on Guantanamo Bay Naval Base detainees a victory for terrorists or for the Constitution was largely determined by their substantive stance on the war in Iraq."

That's correct, the right-wing Washington Times believes whether or not it makes sense to extend American constitutional rights to foreign enemy combatants during war -- depends on your "stance on the war in Iraq." Unless, of course, like the left-wing, you want to blame it all on George Bush.

Does anyone remember that on 9/11 that Jihadists killed Americans, regardless of our political leanings, and before the war in Iraq? In 2001?

Don't You Know There's A War On?

I remember the moment, years ago, that I stared into the abyss of what was the World Trade Center in New York City... thinking God Help Us. Although we here in Washington D.C. also had our tragedy with the attack on the Pentagon that also left an undeniable scar of war on our landscape, seeing the abyss of what was once the World Trade Center was so painfully graphic, how could any person not know we were at war? How could anyone be that blind? I remember thinking that a photograph of the remains of the World Trade Center should be posted in every public building and the office of every senior official - so that they never, never forget we are at war. But they have indeed forgotten. Images of 9/11 are now just fodder for fringe conspiracy theorists. The travesty of the latest Supreme Court decision sets a historical precedent of how much the mortal threat of Jihad against America has faded like a bad memory in the collective consciousness of our governmental leadership, and the memory of many, perhaps most, of the public. So, I have sent a photograph of it to Justice Kennedy to remind him of the consequences of ignoring the mortal threat of Jihad.

Yet Justice Kennedy and his cadre of Supreme Court Justices aren't the only ones who have lost the plot on the war of Jihadists against America. Today, U.S. Defense Secretary Gates again calls for patience with Pakistan, as the Taliban and their fellow Jihadists continue to declare war on the United States, exacting their form of Sharia justice on Pakistanis, and U.S. Ambassador to Pakistan Anne Patterson seeks us to give another $750 million to a Pakistan area largely controlled by the Taliban. Two weeks ago, on May 31, DHS' Daniel Sutherland was giving a videoconference from the State Department to other government agencies to make sure that they don't use the term "jihad" as part of the new "terror lexicon."

America continues to face a reality truly stranger than any possible fiction... a bad dream from which our nation desperately needs to awaken.

Don't You Know There's A War On?

Indeed, they don't - certainly not a global war by Jihadists. That remains the problem. That is why we can't identify the enemy as more than "extremists," and that is why we can't get government leadership to develop a global strategy against Jihad. When it comes to Jihad and its ideological basis, they just don't know there's a war on.

They know that there is military action in Iraq and Afghanistan. But that's the extent of the issue. The larger, global war of Jihadists against all of humanity is not comprehended by multiple levels of American governmental leadership. The war of Jihadists in Africa, Asia, Europe, Middle East... these are all "isolated incidents" and "regional concerns" to a mindset that simply sees no imminent threat by Jihadists or Islamic supremacist ideology. This blindness goes down to the individual citizen level. Instead of being concerned about what petrodollars would do to fund the enemy during war, many American citizens are only concerned about whether gasoline is $4.00 a gallon or not.

So in this state of mass denial, it is not surprising to see such a vulgar slur by the Supreme Court against our fallen soldiers fighting against Jihadists that also disgraces the memories of those murdered by Jihadists on the American homeland.

In his dissenting opinion, Justice Scalia provides a synopsis of the consequences of such disgraceful denial (Scalia Dissenting Opinion, page 2):

"America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. See National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, pp. 60-61, 70, 190 (2004). On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D.C., and 40 in Pennsylvania. See id., at 552, n. 9. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed."

"The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court's blatant abandonment of such a principle that produces the decision today."

Justice Kennedy symbolizes the state of mass denial about Jihad when he states regarding the enemy combatants "none is a citizen of a nation now at war with the United States."

Because anyone involved in knowingly releasing a Jihadist to successfully kill Americans in the future will be an accomplice in their murder. Jeffrey Imm is Research Director of the Counterterrorism Blog , was formerly with the FBI, and also has his own counterterrorism research web site at UnitedStatesAction.com.

From EX PARTE QUIRIN
317 U.S. 1 (1942)

“By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

Such was the practice of our own military authorities before the adoption of the Constitution, and during the Mexican and Civil Wars....

By a long course of practical administrative construction by its military authorities, our Government has recognized that those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission. This precept of the law of war has been so recognized in practice both here and abroad, and has so generally been accepted as valid by authorities on international law that we think it must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War.

Specification 1 of the First charge is sufficient to charge all the petitioners with the offense of unlawful belligerency, trial of which is within the jurisdiction of the Commission, and the admitted facts affirmatively show that the charge is not merely colorable or without foundation.

Specification 1 states that petitioners ‘being enemies of the United States and acting for ... the German Reich, a belligerent enemy nation, secretly and covertly passed, in civilian dress, contrary to the law of war, through the military and naval lines and defenses of the United States ... and went behind such lines, contrary to the law of war, in civilian dress ... for the purpose of committing ... hostile acts, and, in particular, to destroy certain war industries, war utilities and war materials within the United States’.

This specification so plainly alleges violation of the law of war as to require but brief discussion of petitioners’ contentions. As we have seen, entry upon our territory in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and war-like act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents. It is without significance that petitioners were not alleged to have borne conventional weapons or that their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States.... The law of war cannot rightly treat those agents of enemy armies who enter our territory, armed with explosives intended for the destruction of war industries and supplies, as any the less belligerent enemies than are agent similarly entering for the purpose of destroying fortified places or our Armed Forces. By passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or by discarding that means of identification after entry, such enemies become unlawful belligerents subject to trial and punishment.

Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused.

Nor are petitioners any the less belligerents if, as they argue, they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations. The argument leaves out of account the nature of the offense which the Government charges and which the Act of Congress, by incorporating the law of war, punishes. It is that each petitioner, in circumstances which gave him the status of an enemy belligerent, passed our military and naval lines and defenses or went behind those lines, in civilian dress and with hostile purpose. The offense was complete when with that purpose they entered-or, having so entered, they remained upon-our territory in time of war without uniform or other appropriate means of identification. For that reason, even when committed by a citizen, the offense is distinct from the crime of treason defined in Article III, 3 of the Constitution, since the absence of uniform essential to one is irrelevant to the other.

But petitioners insist that even if the offenses with which they are charged are offenses against the law of war, their trial is subject to the requirement of the Fifth Amendment that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, and that such trials must be by jury in a civil court...In the light of this long-continued and consistent interpretation we must conclude that Section 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts....We conclude that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury.

Petitioners, and especially petitioner Haupt, stress the pronouncement of this Court in the Milligan case that the law of war ‘can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed’. Elsewhere in its opinion, the Court was at pains to point out that Milligan, a citizen twenty years resident in Indiana, who had never been a resident of any of the states in rebellion, was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerents. We construe the Court’s statement as to the inapplicability of the law of war to Milligan’s case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war save as-in circumstances found not there to be present and not involved here-martial law might be constitutionally established.

The Court’s opinion is inapplicable to the case presented by the present record. We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries, and were held in good faith for trial by military commission, charged with being enemies who, with the purpose of destroying war materials and utilities, entered or after entry remained in our territory without uniform-an offense against the law of war. We hold only that those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission...”

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/quirin.html

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