Wednesday, September 13, 2006

Must read of the week

The Monk read this last week at The New Criterion website. It's Andy McCarthy's description of how and why the judiciary has no role in national security. Some excerpts:

However patently central it is to a good society, the judicial function remains largely irrelevant to the international order. For all the blather about our "international community," it is an ersatz community, lying beyond our laws and democratic choices. Unlike dreamy modern internationalists, the Framers well understood that broad swaths of this "community"--enemies of the United States--would always pose threats, some existential, to the body politic.

Such threats are not legal problems. They do not principally involve Americans being deprived of their legal entitlements by their government--the cases and controversies judicial power was designed to resolve. They are clashes between the American national community and the outside world. They are the stuff of political power--diplomacy, force, and all the intermediate measures wielded by the political branches. The judicial power has no place because American courts are part and parcel of the American national community; they do not exist outside or above it.

In our system, rising to external threats from alien forces with no claim on the protections of American law would be the domain of the political branches. In times of crisis and war, it would be uniquely the province of an energetic executive. . .

Was that, as vigorously claimed by today's critics of the purportedly "imperial presidency" of George W. Bush, a blank check? Of course it was not. Those hands, the president's, answer to the American people. The line between liberty and security is not a fixed one. "The great ordinances of the Constitution," the legendary Oliver Wendell Holmes, Jr., admonished, "do not establish and divide fields of black and white." They are not amenable to static judicial formulas. Our barometer--within very wide margins--is what the American people demand for their well-being, which ebbs and flows with the state of the threat environment.

* * *
The Hamdan majority cashiered the Bush military commissions on the ground that they violate Common Article 3 (CA3) of the 1949 Geneva Conventions. On its face, this is preposterous, amounting to a drastic rewrite of the Conventions as ratified by the political branches through the Constitution's treaty process. Naturally, al Qaeda, being a terrorist network rather than a country, is not a Geneva signatory. CA3 operates to extend some prisoner-of-war protections to the militias of non-signatories, but only in very particular circumstances: to wit, conflicts "not of an international character occurring in the territory of one of the High Contracting Parties," meaning civil wars. To contort al Qaeda into this category, the court had to find that a terror network which has killed Americans in New York, Virginia, Somalia, Saudi Arabia, Kenya, Tanzania, Yemen, Afghanistan, and Iraq--to say nothing of the hundreds of non-Americans it has slaughtered globally--is somehow not "of an international character" because it is not a nation. Swept aside were the inconveniences that the war on terror is patently not confined to Afghanistan (where Hamdan, Osama bin Laden's personal driver, was captured), and that American courts have traditionally recognized the president's supremacy in the interpretation of treaties (which he ratifies and can unilaterally end).

More alarming, though, are the ramifications of applying CA3. Treaties are international compacts. Presumptively, they do not create private rights that can be vindicated in litigation. Disputes about their application are fodder for diplomacy--negotiations and reclamations between the political representatives of concerned states, not lawsuits. Indeed, presumptions aside, the Geneva Conventions expressly provide for non-judicial dispute resolution. This "non-self-execution" doctrine was pivotal to the unanimous rejection of Hamdan's claims by the D.C. Circuit panel (one of whose members was now-U.S. Chief Justice John Roberts--who thus recused himself from the Supreme Court's consideration of the case). Yet the Supreme Court ignored it.

* * *
There was a time, not long ago, when American courts were our bulwark, guaranteeing Americans a fair shake from their own government. Now, they are fast transforming into a supra-sovereign tribunal: a forum where the rest of the world, including our mortal enemies, is invited to press its case against the United States--a testament to the farcical conceit that a law degree and a prestigious judicial appointment render one fit to determine the security needs of the citizens from which one is blissfully insulated. Welcome to Hamdan's new juristocracy.

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