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Gitmo and the Courts


Benjamin Wittes has an excellent article on the topic at the New Republic. He’s a critic of the Bush administration’s detention policies, but a sober and informed one. It’s a pity so many of his fellow critics are so hysterical. His own criticisms strike me as mostly reasonable.

The court held both that Congress–not the executive branch–stripped the courts of jurisdiction to hear lawsuits from detainees at Guantánamo, and that it had the constitutional power to do so. As a legal matter, the decision is correct. . . .

 As the case heads towards the Supremes, you’ll no doubt hear a lot about suspension of the Great Writ of habeas corpus–the ancient device by which courts evaluate the legality of detentions. . . . It’s all a lot of rot, really. . . . Cut through it, and Guantánamo poses a set of difficult policy problems, not legal ones. And, while judges have a role in the solution to those problems, that role isn’t the one most liberals seem to want them to play. . . .

[T]he notion that this law somehow suspends the writ–a step the Constitution forbids except in cases of rebellion or invasion–is not credible. As a legal matter, it merely restores a status quo that had been relatively uncontroversial for the five decades preceding the September 11 attacks–that federal courts don’t supervise the overseas detentions of prisoners of war or unlawful combatants. The demand that they do so now is not one the Constitution makes.

All of which is not to say the Bush administration has behaved reasonably at Guantánamo–merely that its unreasonable behavior (and the law behind it) do not happen to violate the Constitution.


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