Still Pissed Off About the Hawley-Smoot Tariff

Saturday, November 13, 2004

Ashcroft Criticizes Judges for Questioning Bush Decisions

Story here, via Drudge, of course.

With all due respect to the outgoing Attorney General, I disagree with the core of his speech.

"Federal judges are jeopardizing national security by issuing rulings contradictory to President Bush's decisions on America's obligations under international treaties and agreements, Attorney General John Ashcroft said Friday."

Virtually any questioning of the executive involves some sort of compromise on national security. That's because questioning involves investigation, and investigation involves documents that could get leaked to the public. It's much safer to keep all documents locked in a vault, never to be seen again. But I disagree with the implication that this is an unjustifiable risk. I'm not going as far as the insane Leftists who think all government documents should be instantly available on the internet. But I'm also not willing to go as far as the Rightists who think government has an unlimited right to secrecy, because national security is not worth that kind of cost.

"In his first remarks since his resignation was announced Tuesday, Ashcroft forcefully denounced what he called "a profoundly disturbing trend" among some judges to interfere in the president's constitutional authority to make decisions during war. "

It's hard to fisk that because it is so vague, but let me just point out, so you'll keep in mind as you continue reading, that while the President does have Constitutional authority to conduct war (Art. II, sec. 2, clause 1), that power is not defined in the Constitution, and there is no reason to suggest it is absolute. It is not enough, therefore, to merely assert that the President has power as Commander in Chief. The extent of that power must be defined.

"'The danger I see here is that intrusive judicial oversight and second-guessing of presidential determinations in these critical areas can put at risk the very security of our nation in a time of war,' Ashcroft said in a speech to the Federalist Society, a conservative lawyers' group."

But Ashcroft does not say how intrusive "intrusive." Impliedly he accepts some form of oversight, so long as it is not intrusive. But "intrusive" is a question of degree, not of either/or, and the corresponding risk is therefore also a matter of degree.

Let me clarify that I believe during a time of war, the rules are not the same. Loose lips sink ships, of course, and information revealed to the wrong people gets Americans killed. Far better to let our military effectively defeat the enemy and end the conflict with the minimal number of casualties, then let the slow machinery of government interfere, prolong the conflict, and lead to increased and unneccessary suffering and death.

But none of the foregoing should suggest that all rules go out the window, and the Bush Administration clearly must recognize that, because of their efforts to interpret the Geneva Convention as respects fighting terrorists. They recognize that laws still control, they just want the laws to be interpreted most favorably to them (naturally).

"The Justice Department announced this week it would seek to overturn a ruling by U.S. District Judge James Robertson in the case of Salim Ahmed Hamdan, who the government contends was Osama bin Laden's driver.

"Robertson halted Hamdan's trial by military commission in Guantanamo Bay, Cuba, rejecting the Bush administration's position that the Geneva Conventions governing prisoners of war do not apply to al-Qaida members because they are not soldiers of a true state and do not fight by international norms."

Here we reach an important specific: should a federal judge be able to use the Geneva Convention to interfere with a military tribunal? On these specific facts, I say no. I do not think that the Geneva Convention applies to Gitmo Bay detainees, and probably for the same reasons that Ashcroft would use. But in this article, Ashcroft's speech is far broader than the specifics of the case. He is not attacking the ruling per se, but the very fact that a judge saw fit to make the ruling - and that's where he goes too far. U.S. judges have made rulings on international legal instruments (such as the Geneva Convention) since the beginning of our nation. There is no reason that the judicial power to do so should be suspended during time of war.

Ashcroft's Justice Department wants to appeal the ruling by the District Judge, and that is precisely the proper method of dealing with the problem. Appellate review maintains the judicial safeguards installed by our Consitution; we can't accomplish that by simply removing federal judges from the equation altogether.

"Without mentioning that case specifically, Ashcroft criticized rulings he said found 'expansive private rights in treaties where they never existed' that run counter to the broad discretionary powers given the president by the Constitution. "

I'm as big a textualist as anyone, and I abhor the judicial practice of inventing rights to satisfy their social predilections. But again, there's a disconnect between the general and specific. I may agree that the Geneva Convention does not create any specific rights asserted by Gitmo Bay detainees, but that does not mean the District Courts have no general power to determine whether such rights exist. And the presence or absence of those rights is not left to the sole determination of the Justice Department, or the Executive branch, but rather to the judiciary. If the Geneva Convention did provide for the individual rights found by Judge Robertson, then Ashcroft's complaints would be more obviously flawed, because incorrect on both the general and specific levels.

"'Courts are not equipped to execute the law. They are not accountable to the people,' Ashcroft said."

I agree completely with both statements, but the interpretation of an international convention is not the execution of a law, but the interpretation of a law - the very reason we have a judiciary in the first place.

"The administration lost a crucial legal battle this year when a divided Supreme Court determined the president lacks the authority to hold terror suspects classified as enemy combatants indefinitely with no access to lawyers or the ability to challenge their detention."

I agree with the Supreme Court on this one. There is simply no justification for unlimited detention. That is not to say we must charge everyone within a certain time or else let them go - recent examples of former detainees getting killed while fighting (again) against U.S. forces should be enough to prove that. Where a detainee can reasonably continue to provide useful information, we should keep them as long as necessary. But the determination of "as long as necessary" should not be a unilateral one, made by a military which should be more concerned with prosecuting a war than with legal process. Give them lawyers, give them a right of appeal. And in an appropriate case, deny the appeal and continue the detainment, but only where continued detainment serves some useful function.

Along these lines, it is also worth pointing out that the value of information declines steadily after capture. Just because a prisoner could tell the army about camp locations two years ago doesn't mean those camps are still in the same place. Organizational structure changes, people die, new people are recruited, etc.

So here's my positive suggestion for the military which should keep everyone happy. When it's time to release a detainee, simply place a tracking chip under their skin while they sleep. That way, the military is happy because they will get more useful information, the ACLU is happy because they feel like they obstructed justice, the prisoner is happy because he gets to return to his paradaisical Afghanistan, and the terrorists are happy because, when he shoot a homing missile at them, they get to go be with their god.