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Marty says, echoing Phil:
That is to say—and as Eric's closing swipe at Congress suggests—Eric believes that war should not be governed by legal standards at all. Which is fine, I suppose. But as Phil has stressed, that's not the view of history and of all Western nations engaged in armed conflicts for centuries; ....
It's not really worthwhile, I think, to debate whether war and law are fundamentally incompatible, because that question was definitively resolved eons ago, and there's no constituency at all for reviving it (outside the academy, that is).
I agree that this debate is not worthwhile, which is why I am not a party to it. I never said that the war should not be governed by legal standards. I said that civilian judges should not administer those standards, at least not for routine decisions such as targeting and detention of enemy soldiers overseas. The debate is about the role of civilian courts in ensuring that the military complies with domestic law and the laws of war, not whether "the war should be governed by legal standards at all." That's why I keep trying to get Phil to tell us how far he wants the courts to go. If they should evaluate detention decisions, what other decisions should they evaluate, and so forth. What are the criteria for determining when civilian courts should be involved or not? What's so different about detention and targeting? My small point here, which has been blown out of proportion in the responses, is just the D.C. Circuit's disagreement with the military doesn't help answer these questions, so lends support to neither side's views with respect to the real, as opposed to nonexistent, debate.
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OK, so perhaps I went a bit overboard with the Ouija board metaphor. No, I do not think that the military's detention of the Uighurs was just random, or whimsical, or the product of consultations with the Easter bunny.
More to the point, I, too, accept Eric's assumption—for how could anyone deny it?—that "the U.S. military is more interested in advancing the security of the United States than that of its geopolitical rivals," and that such considerations are what drive its detention decisions. Of course that is the case. The Chinese haven't "conned" our military. We're doing the Chinese a favor—presumably because the administration believes that will redound to our national interests in the long term. And on top of that, we are incapacitating radicalized folks who just might present a danger to us one day, and/or who just might have some intelligence of value that we could extract if only we can use "enhanced" interrogation techniques on them during incommunicado detention over a long period of time.
From the military's perspective, if there is reasonable supposition that the Uighurs might be dangerous—say, a 1 percent chance—and further suspicion that they might, just might, have some intelligence value (say, another 1 percent chance), and if our favor for the Chinese here might result in a reciprocal favor on our behalf from Beijing ... well, then, why not detain them for six years? If that's all the executive branch had to consider—and if its views would never be subject to any review by any other entity (which was the administration's objective in choosing Guantanamo)—well, then, of course it would err on the side of suppressing virtually every possible threat, no matter how minor or how speculative.
And, if that were the relevant question here, then yes, it would be fairly unnerving to have the federal courts "make an all-things-considered judgment about the wisdom" of the military's decision.
So, it's a good thing that's not what the D.C. Circuit has been instructed to do.
Instead, the judges have been assigned to evaluate whether a preponderance of the evidence demonstrates that these are persons whom Congress has given the president the lawful authority to detain. The judges did not decide that it would not be "wise" to continue the detention—they determined that it would be illegal. If Parhat has not "supported" the ETIM; or if the ETIM is not functionally a part of the Taliban; or if the ETIM has not engaged in hostile action against the United States and its coalition partners; or if (as I've argued) the ETIM and Parhat would have to have a much closer and more direct connection with al-Qaida in order to bring this detention within the authority the AUMF grants ... well, then, in that case the president would not have the legal authority to detain Parhat—indeed, in my view, he'd be acting contrary to an implied limitation that Congress has established.
It was not very difficult, or outside their ordinary judicial function, for this panel of judges to determine that the Pentagon had failed to present any credible evidence on even the two easiest prongs of the Pentagon's own theory of why Parhat was detainable-that the ETIM is functionally a part of the Taliban, and that the ETIM has engaged in hostilities against the United States and its coalition partners.
Eric's view appears to be that such questions, while relevant, should hardly be determinative—that the only pertinent question ought to be whether the United States is better off with the Uighurs in captivity, or better off if we release them, "all things considered." And because judges can't possibly evaluate all the myriad considerations of national security in the way that military officials can, they should reflexively defer, unless they sniff the Easter Bunny lurking. That is to say—and as Eric's closing swipe at Congress suggests—Eric believes that war should not be governed by legal standards at all. Which is fine, I suppose. But as Phil has stressed, that's not the view of history and of all Western nations engaged in armed conflicts for centuries; it's not the considered judgment of virtually every president, military commander, and public official we've ever had, from Washington on down; it's not the view of the courts; it's not Congress's view; hell, it's not even the view of the Bush administration, which conceded to the court that it was legally required, at a minimum, to have sufficient grounds for concluding that the ETIM is functionally a part of the Taliban, and that the ETIM has engaged in hostilities against the United States and its coalition partners.
It's not really worthwhile, I think, to debate whether war and law are fundamentally incompatible, because that question was definitively resolved eons ago, and there's no constituency at all for reviving it (outside the academy, that is).
Once one acknowledges that there is a legal standard that the Bush administration must satisfy in order to detain someone incommunicado for more than six years, it makes perfect sense for Congress (or the Constitution) to authorize federal courts to ask the executive to make at least a plausible showing that it has satisfied that legal test. In the case of the Uighurs, the Bush administration has failed that test miserably—which is "all" that Judges Sentelle, Garland, and Griffith quite understandably concluded.
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David, you're right that the solution of my logic puzzle does not imply that courts should defer to the military; it's equally consistent with the proposition that the courts should make detention decisions and the military should defer to the courts. It's also consistent with the idea that you get to decide whom to detain, and I should defer to you (fine with me)—and vice versa. So, I was making an extremely narrow point, which is that until one can show that one institution is more likely to be superior to another, the mere fact of their disagreement does not tell us which is which. That's the problem with Phil's claim that the D.C. Circuit panel's disagreement with the military in the Parhat case tells us anything new. You're right that Phil has other reasons for thinking that judicial review of military detentions is wise policy, but it wasn't my intention in that post to address those other reasons. My logic puzzle doesn't do much work—you're right!—but it does enough to refute a claim that is very common these days.
Marty does make a good point, however, which I will rephrase as follows. Suppose we learn from judicial review of military detention decisions that military officials rely on theories that are truly alarming. Perhaps they pray to the Easter Bunny for guidance and consult the entrails of slaughtered pigeons for indications of the Bunny's divine will. If this is what is going on, we are in big trouble, and not even the wisdom of the federal judiciary can save us. If the military is guided by the Easter Bunny in its detention decisions, then no doubt the Bunny also determines its targeting decisions, the movement of troops from place to place, the acquisition of new weapons systems, and everything else. So what next? We could place the entire military in receivership under the authority of judges, the way that poorly run prisons are, but so far not even Marty seems to want to do this. (Of course, if the judges tremblingly invoke the sacred name of Punxsutawney Pete, who rages at the military's devotion to a lesser deity, then we are back at square one.)
I can't tell whether Marty thinks that the military is idiotic in the Easter Bunny vein. Perhaps I misinterpret him, but he implies that the Chinese have conned the U.S. military into detaining the Chinese government's political opponents. Until I've heard more, I will continue to assume that the U.S. military is more interested in advancing the security of the United States than that of its geopolitical rivals. If my assumption is accepted, we just can't tell whether the military's reasons for detaining Parhat were too weak or the court's standard for detention was too strong—it all depends on how dangerous a person should be in order for the military to detain him and how much confidence the military should have about this person's dangerousness.
In the end, Marty doesn't rely on the court's view at all, which is why I didn't initially link to his post along with Phil's. He would think the same thing if the court had gone the other way (except he would rage against the judges as well as against the military for their Easter Bunny thinking). Marty thinks he can make an all-things-considered judgment about the wisdom of the military's detention of Parhat based on the facts that have been disclosed. I'm not so sure. Who are we to say whether the Chinese can be trusted in this instance? That said, the question whether judicial review of the operations of the military will improve or worsen decision-making from the perspective of national security and civil liberties can be answered only with—and here, David, I will cite your post contra Marty's—experience, albeit experience that has not yet occurred.
PS: I read the court to be saying that if it were just to accept the military's say-so, then it wouldn't have any role in evaluating detention decisions, which would conflict with Congress's intention to give it a role. That's unobjectionable as far as legal reasoning goes, to which I reply: so much the worse for Congress!