TUESDAY'S federal appeals court ruling that terror war detainees at Guantanamo Bay, Cuba, can't challenge their imprisonment in the U.S. court system is a welcome validation of the right of Congress during war to declare that foreign enemies may not seek protection in the constitutional systems they've sworn to destroy.
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The 2-1 decision by the U.S. Court of Appeals for the District of Columbia upheld the 2006 Military Commissions Act, which stripped Guantanamo detainees of the right to bring their cases into the federal court system.
The decision will be appealed to the Supreme Court, but since Congress wrote the military commissions act to make government policy conform to the high court's holdings in another detainee case, there's reason to believe the appellate court's position will be sustained.
After the Supreme Court's Hamdan decision last summer, declaring President Bush's original rules for processing detainees before military commissions were unconstitutional without specific authorizing legislation, Congress granted that authority in the Military Commissions Act.
The act essentially declared the federal courts have no jurisdiction over detainee cases. Circuit Judge A. Raymond Randolph wrote that accepting the detainees' challenge of the new law would "defy the will of Congress.”
Certainly, the prospect of defying congressional will hasn't bothered judges in other cases. Thankfully, the appellate court majority agreed the war on terror merits extraordinary measures by the government to protect Americans — specifically, military commissions to adjudicate the detainees.
Still, the unique circumstances of the terror war managed to elude Judge Judith W. Rogers, whose dissent suggested the current conflict doesn't rise to the level of historic precedents for suspending trial rights, as the Military Commissions Act does.
It's evidence of a pre-9/11 mindset and reflects the continuing churn in American society over whether our own civil liberties should magnanimously be extended to people who want to kill us.
