John Yoo published this article in the Wall Street Journal yesterday about the Supreme Court’s Boumediene ruling. He makes too many claims for me to respond to here in a blog post, but let me address a handful.
1. Yoo: “Under the writ of habeas corpus, Americans (and aliens on our territory) can challenge the legality of their detentions before a federal judge.”
This is an astonishing statement coming from a former Department of Justice official like John Yoo. I say that because Americans were locked up in military brigs as “enemy combatants.” And their attorneys did file habeas corpus petitions in federal court. The Bush administration responded to those petitions by urging the federal courts to immediately throw them out of court! At one point in the litigation, Bush’s lawyers told the Supreme Court, “The Commander in Chief … has authority to seize and detain enemy combatants wherever found, including within the borders of the United States.” Brief for United States, Rumsfeld v. Padilla (No. 03-1027), p. 38. Yoo and others now seem to be playing down those previous assertions about the executive’s military powers, but the record is there for anyone to check. Bush’s lawyers argued that such American prisoners were perfectly free to “challenge” their imprisonment by filing a habeas corpus petition–again, just so long as the courts pronounced such petitions dead on arrival. See Hamdi v. Rumsfeld, 296 F.3d 278, 283 (2002) (“The government [argues that the courts] may not review at all its designation of an American citizen as an enemy combatant–that its determination on this score are the first and final word.”).
With that background in mind, let’s return to Yoo’s claim that Americans “can challenge the legality of their detentions before a federal judge.” To be non-misleading, one would have to add something like, “as long as the courts repudiate the Bush administration’s claims regarding executive power.” Or I suppose there is another possibility. One could prop up the claim with a clarification like “After all, any lawyer can try to challenge anything.” A lawyer can challenge a speeding ticket by the Colorado State Police by asking a judge in Maine to rule in his favor. The Maine judge isn’t going to take any action because his court has no jurisdiction, but the lawyer is nevertheless free to file his request or “challenge” in Maine, futile as it is.
In context, Yoo seems to be trying to assure readers that the writ of habeas corpus is in place for Americans. Well, only if you ignore the legal precedents the Bush administration has been trying to establish. Or only if you are assured by the fact that Americans have a guaranteed right to file futile legal motions in court.
2. Yoo: “The Boumediene Five also ignored the Constitution’s structure, which grants all war decisions to the president and Congress.”
All war decisions? Should the Supreme Court have sanctioned Harry Truman’s seizure of the steel mills (Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952))? Should the Supreme Court have sanctioned the internment of Americans during World War II (Korematsu v. United States, 323 U.S. 214 (1944)? Should the Supreme Court have affirmed the conviction of Eugene Debs under the Espionage Act for giving an anti-war speech (Debs v. United States, 249 U.S. 211 (1919)? Should the Supreme Court have sanctioned military trials for Americans during the Civil War (Ex Parte Milligan, 71 U.S. 2 (1866)? Perhaps Yoo answers all of these questions in the affirmative, but shouldn’t he make his case for such sweeping war powers more forthrightly?
3. Yoo: “Under Boumediene’s claim of judicial supremacy, it is only a hop, skip and a jump from judges second-guessing whether someone is an enemy to second-guessing whether a soldier should have aimed and fired at him.”
Here Yoo wants readers to imagine a judge in robes running between foxholes to review the battle plan. He desperately wants readers of the Wall Street Journal to ask: What in the world can our Supreme Court be thinking? Not to worry. Yoo is simply trying to caricature a position with which he disagrees. I would make two points here. First, I quite agree that judges have no place on the battlefield. However, we need to watch our terms and definitions here. I do reject the Bush administration’s claim that all of the world, including all of the USA is a “battlefield.”
Second, once the dust has settled after a patrol or firefight, is it not appropriate to review the actions of our soldiers? Unless one is prepared to argue that U.S. military personnel are simply incapable of using their weapons unlawfully, war crime allegations have to be adjudicated somewhere, right? In a previously published article, Yoo has called the Abu Ghraib abuses “sadistic.” Given that statement, it seems fair to ask whether the prosecutions and convictions arising from that case were improper because a court “second-guessed” the soldiers’ detention and interrogation methods? And should not U.S. military personnel who believe they have been unfairly prosecuted be able to pursue their legal appeals (in the event of a conviction) beyond the military system to the Supreme Court? If not, why not?