The Constitution and Car Bombs

As might have been predicted, the arrest in the NY car bombing case has set off a wave of arguments about whether the suspect should be afforded the usual protections of the criminal law. Some Republicans members of Congress are suggesting that we should ignore the usual constitutional rules of the criminal law, charge the suspect as an enemy combatant, and bring him before a military tribunal.

Let's not listen to anything I have to say about the issue. Let's turn to that noted radical liberal, Supreme Court Justice Antonin Scalia, who said:

"Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention
without charge."

Apparently lots of people are ready to ignore constitutional restraints in the war on terror. Justice Scalia thinks the Constitution is there to protect us in peacetime and wartime and that its time-tested restraints should be honored. Even as to citizens who wage war against us, the Constitution, Justice Scalia says, requires us to treat them as criminals and charge them accordingly.