The system works, up to a point

Rantingprofs has a good piece on how the editorial pages of the New York Times and Washington Post have reacted to the Supreme Court decisions in the detainee cases. The Post is happy to see limits placed on the administration, but nervous about the implications of the decision granting Guantanamo detainees access to U.S. courts. By contrast, the Times follows its “war, what war?” approach.
Rantingprofs also offers this sensible observation:
“These detentions, I understood, just drove some people around the deep end, and I understood why. What I didn’t understand was people who went one step further and argued that the detentions in and of themselves proved we’d lost our liberties. To me the legal cases in and of themselves proved that wasn’t, couldn’t be the case, since the process remained in play. And, indeed, the Court has severely limited the government’s ability to take and hold detainees. So, the government was holding detainees. Their right to do was challenged in the courts. The administration made legal arguments in response to those challenges. Kind of the way the system is supposed to play out.”
Not that the system is without its weaknesses. The issue in the “due process” cases decided yesterday was how much process is “due” terrorist suspects, taking into account our national security interests. In our system that decision rests with the judicial branch which, for some time now, has been in the process providing business. Naturally, it tends to err (as I believe it did yesterday with respect to Rasul, the Guantanamo detainee) on the side of granting too much process, just as the executive branch tends to err (as I believe it did in its position with respect to Hamdi, the U.S. citizen) on the side of granting too little. In time of peace I prefer the former error; in time of war, I prefer the latter one.
UPDATE: Professor Bainbridge makes a similar point about the Supreme Court’s institutional bias in these cases: “Many will claim that the court is defending the rule of law. Crap. In my view, the court was protecting the rule of judges.”


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