SKEPTICISM

"Phillipe de Croy" is skeptical about the administration's secret military tribunals:

I’d like some more sunlight. And I hope that the courts may share some of my skepticisms if these prosecutions are challenged there.

What he neglects to note is that the track record of courts so far with respect to the war on terrorism hasn't exactly been encouraging -- it's been mixed at best, and pretty dismal at worst. For example, the Fourth Circuit has pretty much done whatever the administration wanted; even the recent pro-Moussaoui ruling contained hints that this was a procedural issue and that the government would get a sympathetic hearing if it defied the trial judge.

The Fourth Circuit is not an historical aberration. Courts generally haven't been willing to challenge the executive during wartime. Think WWI Sedition act cases. Think Quirin and Korematsu. There are a few celebrated exceptions (like Merryman), but upon closer inspection they seem ineffectual and rare. National security justifications are powerful claims and courts are extremely reluctant to challenge the executive when the executive raises them. If there is going to be a serious challenge of national security claims, it will have to come from Congressional and public criticism of the administration's overuse of them. That's a tough road. And it's a road that's not made any easier by complacent claims that civil liberties have actually fared quite well since 9/11 -- a claim made by de Croy's co-conspirator Orin Kerr:

And despite all the news coverage to the contrary, there have been no major losses of civil liberties, either. By my count, there haven't been any law enforcement abuses directly attributable to the Patriot Act in the 20 or so months since it was passed (at least that we know about). Probably the most troubling area has been immigration and detention practices (see, e.g., here); troubling indeed, but on the whole probably less severe than many expected.

In terms of shaping public opinion -- again, the necessary task if the administration is going to be challenged here -- emphasis matters. And the administration has been smart here, pursuing relatively weak members of society and shying away from many of the more controverial liberty-restricting proposals that could earn them majoritarian ire. Kerr may be right that civil liberties haven't fared as bad as some predicted, but it's going to be hard for him to turn around and raise a fuss about secret trials. Hard, but not impossible.