That’s the dead-on reference in the last line in this NRO Bench Memos excerpt
from the dissent written today on the Supreme Court’s staggering
decision on Guantanamo Bay detainees. It’s written, incisively, by
Chief Justice John Roberts. Who pierces the veneer of high
officiousness of this decision with sharp cricitism for what it wrought.
Today the Court strikes down as inadequate the most
generous set of procedural protections ever afforded aliens detained by
this country as enemy combatants. The political branches crafted these
procedures amidst an ongoing military conflict, after much careful
investigation and thorough debate. The Court rejects them today out of
hand, without bothering to say what due process rights the detainees
possess, without explaining how the statute fails to vindicate those
rights, and before a single petitioner has even attempted to avail
himself of the law’s operation. And to what effect? The majority merely
replaces a review system designed by the people’s representatives with
a set of shapeless procedures to be defined by federal courts at some
future date. One cannot help but think, after surveying the modest
practical results of the majority’s ambitious opinion, that this
decision is not really about the detainees at all, but about control of
federal policy regarding enemy combatants.
About control of federal policy. By unelected, politically
unaccountable judges, whose today took control of the nation’s conduct
of foreign policy even further out of the hands of the American people,
writes Justice Roberts.
So who has won? Not the detainees. The Court’s analysis
leaves them with only the prospect of further litigation to determine
the content of their new habeas right, followed by further litigation
to resolve their particular cases, followed by further litigation
before the D. C. Circuit—where they could have started had they invoked
the DTA procedure. Not Congress, whose attempt to “determine—through
democratic means—how best” to balance the security of the American
people with the detainees’ liberty interests, has been unceremoniously
And not the rule of law…
unless by that is meant the rule of lawyers…
and the rule of judges not elected by the people and not accountable to them.
The game of bait-and-switch that today’s opinion plays
upon the Nation’s Commander in Chief will make the war harder on us. It
will almost certainly cause more Americans to be killed. That
consequence would be tolerable if necessary to preserve a time-honored
legal principle vital to our constitutional Republic. But it is this
Court’s blatant abandonment of such a principle that produces the
This issue was visited already in 2006 in the Hamdan decision, but overruled in this case.
What competence does the Court have to second-guess the
judgment of Congress and the President on such a point? None whatever.
But the Court blunders in nonetheless. Henceforth, as today’s opinion
makes unnervingly clear, how to handle enemy prisoners in this war will
ultimately lie with the branch that knows least about the national
security concerns that the subject entails.
It is, states Justice Alito, “both irrational and arrogant”. And we will sooner or later come to regret it.
Hopefully, before election day in November, when the nation sends
the next president to the White House, to a term in which he will
likely name at least two more justices to this already precarious