FDD's Center for Law & Counterterrorism has joined with the Committee on the Present Danger and the Center for Security Policy to file an amicus brief in Boumediene v. Bush, the enemy combatants case in which the Supreme Court will consider whether aliens detained outside the United States have American constitutional rights, including the right to petition for writs of habeas corpus.
As we argue in the brief, the jihadists are engaged in a form of "lawfare," the effort to use U.S. courts as an offensive weapon in their war against the American people. In rejecting a similar effort by German operatives during World War II, the Supreme Court in the Eisentrager case observed, “It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.” Congress, moreover, has given the combatants systematic access to high U.S. courts (the D.C. Circuit and the Supreme Court) to challenge the military detention and trial proceedings once they are concluded — the first time in American history this has been done. That is a more than adequate remedy.
The brief, submitted by the law firm of Wiley Rein in Washington, has been posted on FDD's website, here.