The decision will make the war harder on us. It will almost certainly cause more Americans to be killed.

~ Justice Antonin Scalia, “The Guantanamo Bay Cases” (2008)

If not Guantanamo, where?

One of Obama’s first acts as president was to fulfill his campaign pledge to shut down Guantanamo Bay prison camp for foreign terrorists who fought against, wounded or killed American soldiers. This prison camp was established in 1898 and has been under the control the U.S. since 1903. Since 2002 this base has housed the worst of the worst enemy combatants. All of the 270 men currently held there are Muslims who have waged jihad against America and the West on battlefields in Iraq, Afghanistan and throughout the world. To date, 62 prisoners from this camp have been set free, and 100 percent of them have returned to the battlefield to continue their murderous campaign to kill as many Americans as possible. These are the irredeemable people Obama wants to set free.

The quote by Justice Scalia above concerned several consolidated cases including Boumediene v. Bush, Al-Odah v. U.S. and several others. In a contentiously argued 5-4 vote, the Court rejected the Bush administration’s war on terrorism in these Guantanamo Bay cases, cavalierly striking down the will of “We the People” who through our representatives in Congress in 2006 passed comprehensive, anti-terrorism legislation specifically designed to thwart earlier mischievous opinions by the Court (the “Rasul” and “Hamdan” decisions, respectively) and to affirm America’s 232-year constitutional tradition of treating foreign terrorists (“enemy combatants”) as a distinct class of defendants not worthy of or eligible to receive the same constitutional rights and due process guaranteed to American citizens.

The Boumediene and Al-Odah cases gave full constitutional rights to enemy combatants, setting the stage for the Justice Department to be forced to set many of these evil men free.

This decision tragically puts foreign terrorists’ rights above the safety of the American people. Now, in 2009, with the ascension of President Obama, one of his first executive orders was to close down Guantanamo Bay prison camp within a year and resettle or release all of the existing prisoners. Of course, this act by Obama is blatantly unconstitutional and overrules over 200 years of constitutional jurisprudence and over 400 years of America’s common law traditions dating back to the Pilgrims and Puritans.

Justice Anthony Kennedy, a Republican appointee to the Court and the “swing vote” on many of the contentious issues facing the panel, wrote the majority opinion in this case. Kennedy said, in part, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”

Justice Ginsburg, Stevens, Souter, Breyer and Kennedy’s liberal activist view of the Constitution comports very well with Obama’s socialist, “living” view of the Constitution and can be summarized in three words, “F— the Framers!” (Forget the Framers). It is a perverted and incoherent understanding of the moral/legal paradigm of the Constitution and its policy foundations based on the Judeo-Christian traditions of intellectual thought. Regarding the shameful jurisprudence exemplified in the Guantanamo Bay case and Obama’s unwise policy to close down this important prison camp within a year, this appalling executive decision will only create more unnecessary deaths of Americans, both here at home and against our brave soldiers fighting in defense of our liberty abroad.

FDR and the Nazi saboteur case

I only wish President Bush and now President Obama would have taken the approach FDR took in the Nazi saboteur case, Ex Parte Quirin (1942), where in the midst of World War II eight Nazi terrorists were captured on the coasts of New York and Florida. After a summary trial in July 1942, six were summarily executed one month later after the Supreme Court upheld the jurisdiction of a U.S. military tribunal. FDR, though a liberal socialist, was decisive in quickly and summarily punishing Nazi spies. Hitler did not try that stunt again.

Regarding the Guantanamo Bay decision, President Bush eight years ago should have followed FDR’s lead in the Quirin Nazi saboteur case and dispatched these Muslim terrorists with a prompt military trial and a public hanging. I guarantee you that if he had acted decisively like FDR and the four great statesmen of Mount Rushmore acted during their presidencies that his name would have been regarded in as laudatory a manner as Washington, Jefferson, Lincoln and Theodore Roosevelt, instead of associated with the legendary incompetence of a Jimmy Carter.

Chief Justice John Roberts in dissent wrote that the American people “lost a bit more control over the conduct of this nation’s foreign policy to unelected, politically unaccountable judges.” And Justice Antonin Scalia wrote of the ruling, “Most tragically it sets our military commanders the impossible task of proving in a civilian court … that evidence supports the confinement of each and every prisoner.”

Of course, the liberal pressure group Amnesty International, which has been a long-time enemy of Bush’s war against terrorism, was elated over the ruling. “The Supreme Court did the right thing. Everyone has the right to challenge why they’re being thrown in prison, to hear the charges against them and to answer to that,” said Dalia Hashad, the group’s domestic human rights program director.

Likewise, the communist, anarchist front group the American Civil Liberties Union was euphoric about the Court’s decision on the Guantanamo Bay cases. The ACLU’s Steven Shapiro said on the day the case was decided, “Today’s decision forcefully repudiates the essential lawlessness of the Bush administration’s failed Guantanamo policy.”

President Obama has promised to give America “FDR, part II.” Regarding FDR’s decisive treatment of the Nazi saboteurs in the Quirin case, we can only hope that Obama will follow his political mentor. However, his first acts as president are giving Muslim terrorists hope and Americans and our ally Israel despair – closing down Guantanamo Bay, his first call as president not to Israel, but to the terrorist leader of Fatah, Mahmoud Abbas, and Obama’s first TV interview as president with the Dubai-based Al-Arabiya; indeed these are not good signs of hope for America.

If we only had some audacious men with a bit of testosterone, a few intelligent men not infected by our Stalinist public school system who actually read and understood the U.S. Constitution, not in the perverted manner of the five liberal activist justices on the Court who only see the Constitution as tool of Darwinian principle, “change” or the socialist mantra, “social justice.” We need a president, a Congress and a judiciary that will protect and defend Americans based on the original intent of the Constitution’s framers. Anything short of this objective is tyranny.

Justice Scalia was prophetic and right in his passionate and sober dissent in the Guantanamo Bay cases: The decision [full constitutional rights for terrorists] will make the war harder on us. It will almost certainly cause more Americans to be killed.


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