Many thanks to Jonathan Adler for posting our Wash. Post piece on the Corner.
Sorry we didn’t convince, but I’m not sure we meant to say that the Court’s various “war on terror” decisions were, in and of themselves, not so bad. They were bad, ranging from the poorly (or incoherently) reasoned, to the self-indulgent (a fine time for Justice Scalia to go nativist on us), to simple judicial legislation. The correct results, consistent with the Court’s own, very well established precedents, would have been to rule Guantanamo beyond federal court jurisdiction, affirm the Fourth Circuit’s decision in Hamdi, and overrule the embarrassingly incorrect Second Circuit opinion in Padilla.
However, when you look at the ultimate results of these cases taken together, we firmly believe that the Administration (and the Presidency) won far more than it lost, and it did so on the most critical issues. Recall that the detainees lawyers, and supporters, claimed, among other things, that we are not at war, that President Bush fabricated the whole concept of “enemy combatant,” and that individuals captured in the war on terror were entitled to a speedy trial or release. The Court, admittedly with shifting majorities here and there, put paid to all of these ridiculous claims. We are at war, there is a recognized category of enemy combatant, and captives do not have to be processed like criminal defendants — they can be held until the war is over. Moreover, Quirin is still good law, suggesting that the Administration’s military commission orders will also survive scrutiny.
Further, the Executive can avoid the worst consequences of judicial interference by holding hearings that are not very different from the ones it had planned to hold anyway. Moreover, the burden of proof issue really is significant. In fact, the “credible evidence” standard adopted by the O’Connor Plurality is not, in practice, very different from the “some evidence” standard the Government argued for. After all, Justice never said that individuals could be held on incredible evidence. Indeed, O’Connor’s opinion suggests that the Mobbs Declaration submitted in the Hamdi case was sufficient to shift the burden. Hamdi, and others in his situation, will not have the burden to prove that they are not enemy combatants. That will not be easy. This is why we think that the ultimate results were pretty good for the Administration.
There is another important point here. The Left is busy spinning these cases as a repudiation of the “lawless” Bush Administration’s policies and, even more, flat out misstates what the Court actually said. Unless this spinning and distortion are challenged, we run the risk, both in the political and legal arenas, that their vision of these cases will become the new reality. So, we thought it would be useful to set the record straight. We did not set out to praise the S.Ct. for its work here, and hope that we were not misunderstood.