Saturday, January 07, 2006

Courts go to war

If the deference that Rehnquist and Thomas show to any claim by the executive during our current war makes you uncomfortable, but you think it's the only alternative to letting judges directly interfere with military objectives (like W. Douglas's call to declare Vietnam unconstitutional), a new paper out by Amos Guiora of Case Western Reserve law school might point in the direction of other ways to supervise an executive during wartime.

The jurisprudence of Aharon Barak, chief justice of the Israeli Supreme Court, is discussed in light of his Harvard Law Review article, "A Judge on Judging", 116 Harv L Rev 16. He admits that respecting legal norms requires democracies to fight with one hand tied behind their backs, but other advantages more than make up for this. The role of the judiciary is to intervene in "quality of treatment" questions without getting in the way of military considerations.

While Rehnquist is not an inter arma silent leges proponent (during war laws are silent), he does believe that during wars the laws speak, uh, more softly. Also, he is a friend of deciding these issues after the war is over, like in Duncan v. Kahanamoku, which "vindicated" civil liberties for the record.

The paper then goes on to compare the justices' theories, especially with regard to access to the courts. The Israeli courts are literally and figuratively open 24 hours a day to hear Palestinian grievances, compared with the uncertain judicial oversight current required for detainees in the U.S.

I don't know where I stand on these issues right now--especially with the surge in post-election violence in Iraq--but this is a fascinating paper...

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