The Supreme Court never challenged the right to detain combatants taken as prisoners. Would a court now require that detainees be released back onto the battlefield, where, as Justice Scalia noted, at least 30 had rejoined the battle to kill American soldiers? Would a court have the authority to release detainees back into the United States, when they may have an interest in killing Americans? That is precisely the question raised in the recent release of the Chinese Muslims, who claimed that they could not safely return to China. As the attorney general asked, “Will a detainee be able to subpoena a soldier to return from combat duty in Afghanistan or Iraq to testify? Or compel the United States to reveal its intelligence sources in order to establish the admissibility of critical evidence?” These are part, he said, of “the questions that Boumediene left unanswered.”
On these questions, John McCain would have to linger for about eight milliseconds before he supplied an answer. But Barack Obama’s answer would be far from clear, since he has celebrated the recent decisions of the Court in the cases on detainees. It can never be out of season to put these questions to him, and indeed, if not now, when? If Bush has failed to put that question before the public, that is no reason for McCain to hold back from putting it now.
In the meantime, the judges have been invited to wing it, to make up new procedures as they go. But as they go, they leave American soldiers and officers with no clear guide in the field of operations. The result is to deepen the uncertainty, constrain operations — and make it ever more necessary to bring more and more decisions back to the judges to resolve. The concerns mapped out by Mukasey were grave enough to have warranted a president to command time on television, for an address alerting the country to the crisis and framing the problem, as Mukasey did: This is a matter that requires the Congress now to step up and take its responsibility by enacting the procedures that may guide the judges. Of course, the Congress had done that earlier, with the Detainee Treatment Act of 2005, struck down by the Court in the Boumediene case. The Court erased, in that 5-4 decision, what Chief Justice Roberts called “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” But that is all the more reason to have Congress act again, to give the courts another chance to get it right and edge away from this improvident grab of power by judges.
Even now the posing of the question could sharpen the issue and draw the lines clearly in this election: Barack Obama applauded the decision of the Court in Boumediene; John McCain stood with conservatives in opposing it. Obama more generally stands with the ACLU in the willingness to have courts review and counter decisions of the military. The Left has been tilted strongly to the side of the ACLU on blocking the government from tracking the pattern of phone calls with connections to a terrorist network, or even conducting searches of bags for people entering the subways in New York. On all of these measures, there is little doubt that the public, when alerted, takes the side of the government and the conservatives in the first mandate of the government: protecting the lives of the people.
In that respect, this issue touches the curious divide now in our politics: Whether the question involves the right of employees to a secret ballot in joining a union, the repeal of the Bush tax cuts, or letting people control their own money and buy their own health insurance across state lines — on all of these issues, the public promises to side massively with the conservatives. It would seem to be mainly Bush Derangement Syndrome that can explain why a public, marked by these dispositions, should be recruited now so massively to a Democratic sweep. The willingness of Mr. Bush to have sounded the issue of the courts and the detainees could have been just the jolt of sobriety that wakened the voters from the haze that seems to engulf them. But so much of the problem of conservatives in our politics over the last 20 years has involved the difficulty of imparting speech to the Bushes, father and son. It is late in the game, but the issue is still there. It can still be sounded, and those parts of the public that have not been anaesthetized may be reminded yet to take the side they are on.
— Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College,