Deborah asks about the Munaf/Omar case being argued on Tuesday: "On the foreign affairs and the U.S. Constitution front (if not the hypocrisy front), what do folks make of the administration's argument here that the source of executive power to detain Americans abroad in Iraq may be found (effectively) in international law?"
Well, Deborah, if there's one principle the Bush administration cares even more about than dissing international law, even more than making mincemeat of treaty obligations, even more than preserving unilateral executive prerogatives, it's
making sure there is no judicial oversight over the president's conduct of war
. (My favorite bit from John Yoo's
most recent book
is when he recounts [page 142] that in the weeks after Sept. 11, the administration formed an interagency task force to study the issues related to detention and trial of al Qaeda members, and although there were many novel and contentious questions confronting the group, "
[t]he one thing we all agreed on
was that any detention facility should be located outside the United States"
because then the courts would (they thought) lack jurisdiction over the detention facility. In other words, "The first thing we do, let's kill all the judges.")
In this case, the cleanest way to exclude the courts is to contend that — surprise! — it's not really the U.S. in Iraq who is detaining the U.S. citizens. What? How can that be?