Reader Dafydd ab Hugh writes to note that the link to Professor Yoo’s Wall Street Journal column on the Insane Clown Posse’s detention decisions including Rasul is inaccessible to non-subscribers, and to argue that my excerpts of the column were misleading, in the post “Professor Yoo’s dissent.”
I think Rasul is the most important of the three detention decisions; I may be wrong, and Professor Yoo suggests otherwise. I think Rasul is wrong and harmful; Professor Yoo suggests the same, but adds that the harm can be ameliorated by the executive and legislative branches.
In excerpting the quotes in the post I had counted on readers having access to the column in its entirety in order to evaluate it for themselves. The following is a link that should be accessible to readers interested in doing so: “The Supreme Court goes to war.”
In the event that the link doesn’t work, I’m pasting in the column in its entirety below:
From the initial returns, one might believe that the Bush administration suffered a legal defeat this week in the war against terrorism. In Rasul v. Bush, the Supreme Court ruled that the federal courts — for the first time — will review the grounds for detaining alien enemy combatants held outside the U.S. In Hamdi v. Rumsfeld, the justices required that American citizens detained in the war have access to a lawyer and a fair hearing before a neutral judge.
But despite the pleas of legal and media elites, the justices did not turn the clock back to Sept. 10, 2001. While the Court has unwisely injected itself into military matters, closer examination reveals that it has affirmed the administration’s fundamental legal approach to the war on terrorism, and left it with sufficient flexibility to effectively prevail in the future.
To wit, the Court agreed that the U.S. is at war against the al Qaeda terrorist network and the Taliban militia that supports them. It agreed that Congress has authorized that war. Moreover, the justices implicitly recognized that the U.S. may use all of the tools of war to fight a new kind of enemy that has no territory, no population and no desire to spare innocent civilian life.
Taken as a whole, the Court’s message is unmistakable: The days when terrorism was merely considered a law enforcement problem and our only forces were limited to the FBI, federal prosecutors and the criminal justice system will not be returning.
Following judicial precedent and common sense, a plurality of four justices in Hamdi agreed that waging war must include the power to detain enemy combatants. Justice O’Connor’s opinion made clear that detention in wartime is not a punishment, and so does not deserve the trappings and procedures of the domestic criminal-justice system. As she observed, “the purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again.” Enemy combatants can even include American citizens who join al Qaeda or the Taliban. Brushing aside the argument that Yaser Hamdi’s detention was illegal because it was indefinite, the Court affirmed that an enemy combatant may be detained for as long as active hostilities continue, as they do in Afghanistan.
Upholding the detention of citizens who join the enemy is perhaps the most significant aspect of this week’s opinions. As the Jos