Guess Who’s Telling the Supreme Court How to Rule?

Retired Generals, Retired Diplomats, and Foreign Officials

Interesting groups of people show up, sometimes, filing amicus curia briefs in the US Supreme Court. This is especially true in the latest case to review the legal rights of illegal enemy combatants held at Guantanamo, Cuba. These are some of those groups which are supporting the ACLU idea that all prisoners, regardless of their status, are entitled to full-dress trials in Article III courts, rather than the kind of military tribunals under which Nathan Hale was tried and executed by the British, and Major John Andre was tried and executed by the Americans.

There is, of course, a more recent example: the trial, conviction, and execution of six of eight German saboteurs in 1942 by a military tribunal. That was approved by a unanimous Supreme Court in the Quirin case in that year.

Twenty retired federal judges signed onto the argument that the unanimous Quirin case was wrong, and that these detainees should be tried in ordinary courts, with public trials and all those benefits which are not permitted in military tribunals.

Tribunals are conducted in secret because in wartime letting the enemy know what you know will get people killed. We are at war; that’s when military tribunals are used. Makes you wonder who appointed these judges, and what they did while they were on the bench. Reading law books on unanimous Supreme Court decisions was obviously not part of that.

A competent reporter might have inquired into the political backgrounds of those twenty judges to help the readers understand why they want the Supreme Court to overturn existing law. At the very end of the article, it says the judges “are both Republicans and Democrats.” That phrase conceals, rather than reveals. How many of each? Appointed by whom? There is a tendency of most judges to follow the judicial philosophy of the President who appointed them.

Joining the judges are “two rear admirals and a Marine general.” My understanding is that there are several thousand retired flag officers, which would include these three gentlemen. Again, the reader gets a better understanding, when the fact that three flag officers signed onto this brief, that 2,351 (or whatever) flag officers didn’t sign on.

The final and most appalling group are “383 current or former members of the European and British parliaments.” What business is it of residents of other nations, who are or have been members of foreign governments, to tell the US Supreme Court how to rule on the US Constitution for the safety and welfare of US citizens?

The 383 European politicians are described as having “divergent political views.” Given the current membership of the European Parliament, that probably means they range from hard-left to left.

In another brief in the same case, “25 retired American diplomats” are quoted as claiming that anything less than full access to American courts for the detainees will be “seized upon by repressive governments as a license to incarcerate their own citizens and others with impunity.”

Let’s put this in context. Robert Mugabe, who has robbed and murdered his way through Zimbabwe so a nation which was once prosperous and exporting food now faces genocidal starvation, blames this on Britain. He’s behind the times. These former American diplomats think he should blame the US.

Again, it would be helpful to the readers of this article to state what American administrations first appointed these former diplomats. That information might provide a strong clue why a small fraction of retired US diplomats are siding with the ACLU and against the Supreme

Court on this critical issue.

The facts for this article, but not the legal conclusions, come from an Associated Press article in the San Diego Union-Tribune on 24 August.

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About the Author: John Armor was a member of the Bar of the Supreme Court for 33 years, and briefed 18 cases there. He is now a counsel to the American Civil Rights Union.