Posted Wednesday, July 2, 2008, at 4:08 PM
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!