January 27, 2005
by Robert H. Bork , David B. Rivkin Jr.
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.
Rasul v. Bush, on the other hand, was a disaster for the war effort. Aliens held at Guantanamo Bay, not a part of the United States or within the jurisdiction of any federal court, were held to have a right to a habeas petition. The result would seem to be that captured alien combatants held by the U.S. military anywhere in the world can henceforth litigate their status in federal courts.
Some lower federal courts have not resisted the temptation to insert themselves further into the conduct of the war. In doing so, they have interfered with the war effort while fostering the false impression that the executive branch is trampling on constitutional liberties. The district court's decision in Hamdan v. Rumsfeld (2004) is a prime example. The judge applied the Geneva Conventions in contradiction of the legal framework laid down in Hamdi, misread the conventions and severely encroached upon the president's war powers. In Omar Abu Ali v. Ashcroft (2004), another district court outdid the Supreme Court by finding that it had, at least potentially, authority to determine the legality of a foreign government's detention of an accused dual-nationality terrorist because of an allegation that the United States had prompted the detention.
Nearly 70 years ago, the court held in a famous decision (Curtiss-Wright Export Corp. v. United States) that the executive branch's extensive prerogatives in foreign affairs are grounded in its unique expertise, information and unitary nature. Courts have neither the constitutional authority nor the expertise and information to override the president's determinations on issues such as whether we are in armed conflict or what kind of anti-terrorist cooperation we should engage in with foreign governments. For obvious reasons, the executive cannot share all the relevant information with judges. Nor has the judiciary the necessary unitary nature, unless every case is decided by the Supreme Court.
Thus, in addition to fighting legal battles in court, the administration would be well-advised to make a far stronger public case for its detention policies, which are designed not only to prevent enemy combatants from returning to fight against us but also to obtain intelligence that might save the lives of American soldiers and civilians as well as shorten the war. Although current detention and interrogation procedures can surely be improved, and additional safeguards against abuses should be adopted, these ought to be matters for the political branches. Freezing policies through constitutional rulings should be a last resort. The executive and Congress, as circumstances change and experience accumulates, can debate and resolve in a flexible manner the policy imperatives of individual liberty and America's reputation overseas, on one hand, vs. the demands of collective safety. But in doing so they must avoid trampling on the president's constitutional prerogatives. Congress should not lay down detailed prescriptions on what interrogation techniques are appropriate. And it should resist the temptation to grandstand; passing exhortations against torture is not the way to proceed.
Sensitivity to these matters and the crucial but limited role of the judiciary should be taken into account in the choice of nominees to the courts and in the confirmation process. Too much is riding on the outcome of this war -- ultimately, perhaps, the survival of Western societies -- to choose judges who are unaware of the complexities of what is at stake.
This article appeared in The Washington Post on January 21, 2005.
Robert H. Bork was a Distinguished Fellow of Hudson Institute. He passed away on December 19, 2012.
David B. Rivkin Jr. is a Washington lawyer who served in the Justice Department in the Reagan and George H.W. Bush administrations.
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