Do they really want to go there?

Captain Ed thinks that the Democrats will use the Hamdan case, decided last week, against John Roberts. I blogged about that decision in detail here and here. In essence, Judge Raymond Randolph wrote that a trial by a military tribunal was all Osama bin Laden’s driver was entitled to at this point, and Judge Roberts agreed in full. A third judge agreed with the result and concurred in nearly all of the reasoning.
Ed may be right about what the desperate Dems will do. But is it really smart to attack Roberts for not voting to confer more legal process on bin Laden’s associate?
From a legal standpoint, the Hamdan decision illustrates what judicial restraint should be about. The district court, refusing even to consider key legal precedent, had emphasized that by not treating Hamdan better we risked mistreatment of our own soldiers. An arguable policy position, perhaps, but one for the president, the miiltary, and Congress (if it is unhappy with the executive branch’s approach) to decide, not an unelected judge. Republican Senators should be willing to tout the fact that Judge Roberts joined Judge Randolph’s no-nonsense opinion.


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