Other courts should learn from this act of judicial modesty. In a 2009 decision, a federal court in San Francisco allowed Padilla to bring a claim against former government attorney John Yoo for legal advice that he gave to the president and other officials. That case is now on appeal before the Ninth Circuit, widely considered the most liberal in the nation. And in Vance v. Rumsfeld, a district court allowed to proceed a claim against Donald Rumsfeld for sanctioning policies that allowed the detention of two contractors in Iraq. That’s now on appeal to the Seventh Circuit and went to oral argument last week before a left-leaning panel of judges.
But Judge Gergel’s decision shows that even left-leaning judges can and should put politics aside in dealing with matters of national security, and instead act with the modesty envisioned by the Constitution, which placed national security primarily in the hands of the executive and the Congress.
So chalk this up as a win for the United States and a win for constitutional values. And it is a distinct loss for those who would wage lawfare against us.
— Charles “Cully” Stimson is a senior legal fellow at the Heritage Foundation and a former deputy assistant secretary of defense for detainee affairs (2006–07).