COURTS DURING WARTIME

You should read the 2nd circuit's Padilla decision from today: it's pretty gripping stuff (links here, PDF files here and here). Skip pages 9 - 23 if you want and get to the meat of matter: "the power to detain." On the one hand, with the majority you have a claim that a statute, 18 U.S.C. § 4001(a), specifically prohibits detentions; on the other hand, with the dissent you have a (not obviously strained) reading of the Joint Resolution from September 18, 2001 that it authorizes the use of detentions even if they are not specifically mentioned. At that level of generality (and following Cass Sunstein), I would be inclined to think that the majority is doing something that courts should do: signal to congress that it alone has the duty to authorize such detentions specifically, in the full light of day, with full awareness of the electoral risks of doing so. In other words, more deliberation is needed if such detentions are to be authorized by law.

If the ruling stands -- and perhaps it won't -- one can imagine three possible paths going forward. First, there are no new foreign attacks, the threat fades, and the sense of urgency that would have propelled congressional authorization of detentions dissipates. The fact that WMD's have actually been found in the U.S. recently and no one seems to care (see here) indicates, I think, that the threat has faded a bit (or that the media only cares if the terrorists are islamicists, which is another story). A second possibility, though, is that events intervene: there is a new attack and the administration uses the opportunity to pressure Congress to pass a statute authorizing detentions and / or suspending the writ of habeas corpus. Then it would be highly doubtful that courts could even put up the kind of fight that they have put up over the past few years. A third possibility is that the President takes detentions "to the people" next year, with or without another attack, and makes a plausible case that Congress should authorize such detentions, and pressures Congress to pass a new bill. I haven't seen any sign that detentions are part of Bush's electoral strategy, though. In a normative sense, unless they become part of that strategy and the voters respond, the President should probably drop this one, although no one but Congress (through impeachment) or voters (through the ballot) have the power to force him to drop it.

Contra Eric Muller, I don't think that there is a strong tradition of judicial assertiveness during wartime, though. My sense is that time has worked against the assertion of executive authority here. If there is another attack, I would imagine that courts would likely retreat. This assertion is not falsifiable [at present] -- and let's hope it doesn't become so anytime soon -- so I suppose we'll see how this one plays out, and I am prepared to admit that my faith in courts has been restored, slightly, if they keep up their good works here.