June 12, 2008

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.

Posted by LMC at June 12, 2008 09:14 PM | TrackBack

The court has opened a can of worms here; the miltiary has to fight wars without having a defining and controlling "law of war" to specify how they are to proceed. It's dangerous, because it seems to me that they are maintaining that an enemy combatant, his head in the crosshairs of a sniper, has Constitutional rights under the law. There will have to be a whole development of legal procedure to protect our soldiers on the battlefield. Wisdom would have been to simply say "it's up to the executive"; unless the members of the Supreme court are willing to put on their helmets and head out to war, it seems to me they are asserting powers far beyond what the Constitution intended for them.

Posted by: The Abbot at June 13, 2008 08:27 AM

The third choice for the military is just don't take them prisoner in the first place. As far as you know he had an explosive belt on under his clothes. You're right, the military is left with cruel choices.

Posted by: Mike at June 13, 2008 11:31 AM

Mike's right. The five hand-wringers on the Supreme Court are be patting themselves on the back for throwing the Constitution out the window to protect these enemy combatant's "right" but it may only hold true for those now in custody. For many of the A-Q types still on the loose it bodes ill. It's very possible they'll not end up in a PW cage.....they'll just end up....dead.
Unintended consequences you know..

Posted by: Tbird at June 13, 2008 11:54 AM