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The Corner

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Supreme Debate



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For the Corner – Let’s get the debate going. Judicial review once again runs amok. The idea that foreign combatants have access to U.S. civilian courts because they’re held at GITMO is nuts. I suppose the Pentagon will have to make sure future foreign detainees are held outside U.S. controlled terroritories, but back to the basics. As Clarence Thomas points out in Hamdi v. Rumsfeld, “Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive.”

During war (yes, even this war Jonathan), the balance of power between the branches become less balanced. And this didn’t start with the war on terrorism. The Executive Branch is best positioned to ensure the nation’s security, the judiciary the least suited. No need to write the government’s brief here, but again, I point to Thomas, who in turn points to Justice Jackson’s comment Chicago v. Southern Air Lines (1948):

“The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive Branch taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, they very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion and inquiry.”

There’s a mindset, which is on display even today as these cases came down, that the courts are more just and thoughtful and wise than the other branches of government. Even here, where foreign combatants have been removed from the battlefield and placed in military detention, the notion is that judges should have a prominent role, where the Constitution provides none. It is the job of the Executive to ensure national security, especially during war, and there must be some overriding basis for finding otherwise. Detaining 600 foreign combatants for 2 years does not, in my view, come close to such a justification. During Vietnam, World War II, and other wars, the U.S. detained POWs for much longer periods, and no one contends they had a right to judicial review in our civilian courts, do they?

The Majority believes the lower courts will use their new power in an appropriate manner. As I see it, it’s the courts, not this president, who’ve abused their power. The examples are so numerous that to list them would require my taking a sabbatical from my job to write the brief. But, let the debate begin.



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