Giving guilty people rights makes it harder to prosecute them, and that is the price we accept to avoid convicting innocent people. That terrorists pose a far greater threat than even a fairly lethal common criminal, that affects the balance of interests. I believe that persons designated enemy combatants should receive some due process, but given the nature of al-Qaeda and similar groups, the degree of due process cannot be the same as for the guy who robs the convenience store. The war against terror will simply not be won that way.

And while I understand federalist’s points about how judicial oversight seems odd in a military setting, there are two easy answers. One, judicial oversight exists already, in the form of military discipline (overseen by judges) that punishes e.g. murder on the battlefield. Two, the US judiciary is quickly gaining experience in dealing with these claims, esp. since passage of the Alien Tort Claims Act, which permits civil suits for violation of international law. See, e.g., Eastman Kodak Co. v. Kavlin, 978 F. Supp. 1078, 1090 (S.D.Fla. 1997); In re Extradition of Suarez-Mason, 694 F. Supp. 676 (N.D.Cal. 1988).

In any event, my points are as follows:

1) I think the fact that the judiciary is getting involved in Padilla and the GTMO detainees in part reflects the smallness of the numbers involved. If there were thousands upon thousands of these guys, the courts simply could not handle it. A corollary to this observation is that some of the Justices and the pundits do not believe that this is a real war.

2) I think that in our history, courts have generally stayed out of warfighting. They are getting involved now, and I am not sure that the intervention (regardless of how one feels about Padilla) is justified from a constitutional standpoint. Like I said, no one would have thought that Johnny Reb would get a hearing. Does Padilla get one because he was out of uniform and not following the laws of war–an odd result. And if you think that the courts have the authority to deal with the issues raised by Hamdan and Padilla, do you think that they could get involved with rules of engagement, or other warfighting efforts. If not, where are the clear logical stopping points for court activity? The citizen/non-citizen distinction doesn’t seem to matter, as many of these guys are not US citizens. The battlefield issue is not a good one, as the battlefield is worldwide in the war on terror (and not that an artificial limitation of the battlefield would in effect reward these terrorists for engaging in warlike acts outside of acceptable rules of warfare). The fact that “innocent” people may be swept up is unconvincing as well–what about innocent people that the military decides to bomb and kill? It happens in war. Do those people have standing?

3) There’s also a judicial competence issue. Judiciaries don’t fight wars–they decide cases, and they uphold rights. War is messy. Rights are a focus, but not the main focus. While we would all agree that it’s better to let 9 guilty walk free such that one innocent does as well, that’s not the calculus in war.

4) No one, I think, has thought through the ramifications of such judicial oversight. American fighting men are not fools. Anything that makes the possibility of the “bad guys” going free greater is likely to incentivize not taking the “bad guys” prisoner in the first place. American forces have already had to deal with people released from GTMO. Now, it’s unfair to blame the courts for that, but, to the extent that the war is prosecuted with an eye toward judicial oversight, it is certainly possible that people who would have been captured would otherwise be killed. And before everyone jumps all over me, think about this–you’re a soldier, and you know that for whatever reason half of the people you capture will be released and say 10% of those folks will ultimately be fighting you again (i.e., killing your buddies), if you could legally kill some of these guys (i.e., consistent with the rules of engagement), wouldn’t you at least think about it? I would, and I am an ex-military officer. The issue is not cold-blooded murder, but protecting your own. Fortunately, we have not heard about any released person from GTMO being successful killing an American, but the possibility certainly exists since we have recaptured some of these guys, but how would any of you like to explain to a grieving mother that we had caught the guy originally, but we released him because of international pressure or concerns about what the judges would think? I wouldn’t. This is not merely a theoretical possibility.

5) Given the problems with judicial oversight, isn’t it possible that the solution lies with politics. Could it be that these guys are better served by the fact that the king here is subject to election, as is Congress?

And let’s say they were all in federal custody, like Padilla.

And let’s say they were all U.S. citizens arrested on U.S. soil, like Padilla.

The Constitution describes the crime of treason, doesn’t it? Or did the Founders imagine that, once detained, those citizens could be summarily held indefinitely at the king’s whim?

(Excuse me, I meant to write “president.”)

In any event, let’s say that there were 5,000 padillas, i.e., that terrorists had a plan to overwhelm the US with thousands of terrorists to launch a terror war inside the US. And let’s say that they actively recruited thousands of US citizens. Would anyone think that the courts would get involved–especially if bombs started going off?

On the eve of the Civil War, the 14th Amendment which is the doctrinal bridge to apply constitutional rights to state courts didn’t exist and the black letter law was that the Bill of Rights did not apply to the states. The only appellate review of federal criminal convictions was via habeas corpus — direct appeals of federal criminal convictions didn’t exist (and the 6th Amendment had not yet been interpreted to include a right to state provided counsel). Trial court decisions upholding the constitutionality of a federal law were outside the jurisdiction of the U.S. Supreme Court. The First Geneva Convention wasn’t signed until 1864, and much of the modern law of war did not exist. There was no UCMJ. Federal statutes had been held unconstitutional only half a dozen or so times since the founding of the Republic. Immigration laws weren’t invented until 1875. Telecommunications were limited to the telegraph, and expectations of privacy regarding telegrams were not well settled.

The Civil War also presented questions uniquely because it was a civil war. Congress was without delegates from many states. The legality of the decision of states to leave the union was not a settled issue prior to the war. The citizenship of residents of Confederate states was not obvious — when, if ever, did you cease to be a U.S. citzen — when your state declared an intent to leave, when you swore a loyalty oath, when you joined the Confederate Army (or were drafted)? Much of U.S. soil was a battleground in a far more elementary and straightforward way.

The answer, I think, is that people think of the GWOT as less than a real war.