A War the Courts Shouldn't Manage

The Washington Post ^ | January 21, 2005 | Robert H. Bork and David B. Rivkin Jr.

[quidnunc]

As speculation mounts about President Bush's nominees to the federal judiciary, and particularly to the Supreme Court, one factor that should be of paramount importance is too often overlooked. Curbing or reversing the Supreme Court's usurpation of so many domestic issues is crucial. But perhaps even more important is avoiding judicial micromanagement of America's war against radical Islamic terrorists. Already there are disturbing signs of judicial overreaching that is constitutionally illegitimate and, in practical terms, potentially debilitating.

The vast majority of war opponents and attorneys for captured terrorists are pressing for a full-fledged criminal law model never before applied to enemy combatants. Realizing that Congress and the president will not adopt their position, these litigants are resorting to the federal courts. Real abuses that inevitably occur in war, as well as in peacetime prisons, are being punished by our military, but that does not assuage critics who have an agenda other than justice. They allege that the abuses stem from the administration's legal analysis and that the analysis is contrary to the Constitution and to international norms. That is wrong on both counts.

A pair of confusing Supreme Court decisions handed down June 28 plowed the ground for astounding lower-court activism. Hamdi v. Rumsfeld, involving a petition for habeas corpus on behalf of a U.S. citizen held by the military as an enemy combatant fighting in Afghanistan, was a qualified victory for the government. The court approved the use of military tribunals but held that Yaser Esam Hamdi must have an opportunity to contest his status as an enemy combatant. It left unclear how that opportunity could be exercised, and it is difficult to see how it could be without calling witnesses from the combat zone, a procedure that would divert American soldiers from waging war.

-snip-

[Da Bilge Troll]

I'm amazed the Post would publish anything from Judge Bork! Have they been promising to get more "fair and balanced" lately?