The Gitmo Decision

The decision for the Court and the dissents of Chief Justice Roberts and Justice Scalia are here. The dissents are scathing in their analysis and in their predictions.

We tend to see the world through the prism of our professions and lawyers are no different than anyone else and I say this as an attorney. The Court's opinion reflects the dangerous desire to turn every argument of policy into a legal one which must therefore be decided by life-tenured lawyers sitting on the benches of the various federal courts.

The decision to wage war is ultimately a political one and by that I mean it is made by the political leadership of the country which chooses to go to war. The desired end-state and the methods and means by which that war is waged is committed to the political branches, the President and the Congress, who have the staff, the resources, and the time to debate and weigh far better than the judiciary ever will. The fate of those captured on the battlefield belong to the captors and it is appropriate we debate and decide how such detainees should be treated and their status reviewed, weighing the exigencies of war and the overriding need to ensure the security of the American people. Those decisions must be made by those who can be held to account by the electorate. Presidents, Senators, and Congressmen can be voted out of office. Life-tenured judges cannot. They are accountable only to other judges. This is why elections matter.

As the dissents point out, today the court made a procedural mechanism, habeas corpus, available to unlawful combatants, without stopping to explain what rights such a mechanism would enforce. Today, the court overruled 59 years of precedent to hold that aliens not held in the United States have recourse to the Great Writ. Today, the Court made it likely our military will be faced with a cruel choice: release dangerous men or release classified information the disclosure of which will make it more dangerous for troops on the battlefield.