SUICIDE PACTS

Compare the following quotes on Monday's Supreme Court terrorism rulings:

US Supreme Court Justice Jackson famously opined that the Constitution "is not a suicide pact." Apparently nobody bothered to tell the current Supreme Court. [T]he court held today that the terrorists down at Guantanamo are entitled to get into US courts to challenge their imprisonment. (From here)

Could Lincoln have effectively fought the Civil War under [Scalia's and Stevens's] reasoning? (From here)

Indeed, in the hands of the Jihadists, a writ of habeas corpus would prove more deadly than a hijacked plane or weaponized smallpox, for with it, they could unleash Freedom against itself in an Ouroborobian orgy of Islamofascist terror. (From here)

I'm finding it a little hard to engage the argument that the Supreme Court a) just made the Constitution into a "suicide pact" (meaning, I gather, that people will die because of their rulings) and b) just made "winning" the "war on terror" substantially more difficult, even to the extent of tilting the scales in the direction of losing the war itself.*

So I find comfort in the ironic Fafblog horse laugh once again. Luckily, future experience will determine who is on target here. . .

. . .unless, of course, there is no "winning" the "war on terror" in the same way that there was a winning of the Civil War. In that case, moves in the construction of the law of detentions will become an established part of the eternal game of political enemy construction, to borrow another term from Murray Edelman.

That's probably where my money is right now. The war on terrorism is the new Cold war, speaking in terms of domestic politics, and the existing coalition on the right will produce argument upon argument about how folks on the left -- and institutional whipping posts like a powerful Supreme Court that rules the wrong way politically -- are not taking the threat seriously enough.

And so it goes.

*MORE: My comments are actually a little misleading, since Ken Masugi is discussing a concurring opinion and criticizing a style of reasoning that did not persuade a majority on the Court. It remains to be seen what the folks at Claremont will say about what the Court -- as opposed to Scalia and Stevens -- actually did on Monday. Plus, I might be accused of taking the term "suicide pact" too literally, but I don't see how Rasul could produce anything like a national "suicide pact" unless it causes actual harm in the war on terrorism. The difficulty of assessing whether that is true is one of the main points of the post, though.

MORE MORE: In his usual sober style, Phil Carter has a balanced article in Slate on what he calls the "operational implications" of this week's detention cases. He makes three points that are worth emphasizing: 1) the Supreme Court left a lot of room for the development of appropriate procedures below, but 2) these procedures will probably impose some burdens on the government, but 3) the cases are also a "reaffirm[ation of] America's commitment to the rule of law at a critical time in our nation's history."

And in defense of Eugene Volokh, spinning out hypotheticals is one of the ways of staking out the ground covered by Supreme Court decisions. Constitutional interpretation needs to be seen as a process that involves the courts, professional interpreters, other government actors, and the public as a whole. I suspect that I disagree with Volokh on the significance of the principles themselves -- political scientists are probably freer to describe the non-principled substance of judicial decisionmaking than law professors, whose prestige often relies on their ability to grasp, expound, and advance principle.

Moreover, in discussing his particular hypothetical of 50,000 surrending troops, Volokh simply multiplies the costs involved in implementing the Court's decisions in order to highlight those costs. A basic problem for policy design here is that cost and protection of innocence (read, justice) are probably proportional. In what proportion? Hard to tell. The administration will have incentives to focus on the costs -- especially in the context of the court-unfriendly rhetoric that has become one of the mainstays of the Republican party. Rights advocates probably have incentives to minimize the costs. A sensible approach would both admit that there will be costs, focus on what they are, and engage, seriously, the extent to which they are worth paying. Carter goes in that direction, as does Michael Froomkin, here.