Professor Yoo’s dissent

In the Wall Street Journal Professor John Yoo concisely gets to the heart of the harm wrought by the Insane Clown Posse in the most important of the three detention cases (Rasul) decided earlier this week: “The Supeme Court goes to war.” Below are the paragraphs of most interest to me, but the whole column is must reading. Professor Yoo writes:

[T]he Justices left the hard questions up to the lower courts and the administration, or even Congress, to resolve. This is especially important in light of the decision in Rasul, a clear defeat for the government, in which the Court found that Guantanamo Bay (and perhaps military operations world-wide) lay within the jurisdiction of the federal courts. Rasul essentially overruled the 1950 Supreme Court case upon which the government had relied in locating its detention facility there, and it threatens to inject the federal courts into the micromanagement of the military.
While we can expect the 600 detainees to each file a habeas petition, possibly in each of the 94 district courts, Rasul gives no guidance on how soon those hearings must be held, where they will be held, who can participate and how classified intelligence will remain protected. Despite an extended discussion of the peculiarities of the Guantanamo lease, Rasul leaves unclear whether judicial review would apply beyond Guantanamo to Iraq (and Saddam Hussein) or Afghanistan (and Osama bin Laden, should he be captured).
Because of the judiciary’s unprecedented expansion into what had always been considered the ultimate preserve of the political branches, the executive will have to do a better job of reviewing its detention cases and explaining its reasons. Now is the time for Congress and the president, vested by the Constitution with all of the war power and directly elected by the American people, to establish these procedures with a broader view of the costs and benefits for the war on terrorism. They should not wait for district judges to make these choices ad hoc simply because they happen to hear the early cases.
So far, the president and Congress still have the opportunity to make these fundamentally military choices in a way that may not interfere with important battlefield decisions. Whatever the policies chosen, however, they will require the devotion of more resources toward lawyers and judges and less to direct military operations or intelligence-gathering. That, alas, is the price of satisfying an imperial judiciary.

(Courtesy of Michelle Malkin.)


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