Category: Constitution – Courts – Law – Justice

When Must the Executive Enforce the Law?

There has been a brisk exchange of views about the respective responsibilities of the legislative, executive, and judicial branches for determining the constitutionality of laws. It all began with Jonathan Adler’s piece at National Review Online about “Suicidal Folly”. Some recent entries in the debate can be found here and here. This is my take:

1. Congress enacts laws for whatever reasons it will. Members of Congress may have stirring debates about the constitutionality of a particular law, but in the end Congress will do what it will do. It’s true that Congress should enact only constitutional laws, but that’s like saying children who live in a match factory shouldn’t play with matches.

2. If the executive doesn’t like a particular law for any reason (one of which may be his opinion that the law is unconstitutional) he may veto the law. If his veto is overridden, the law is the law.

3. In the absence of a specific judicial decision nullifying a specific law, the executive is bound to enforce that law. That is what the Constitution contemplates: The legislature legislates and the executive executes. There’s nothing mysterious or arcane about that.

4. If a party with standing challenges a law, it’s up to the courts to decide whether or not it’s a constitutional law. As it says in Article III, Section 2, of the Constitution:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States….

Which means, as far as I’m concerned, that the executive must defer to judicial decisions about the application of a specific law.

That should do it. Why make it needlessly complicated when we have the structure and words of the Constitution to guide us?

It’s Worth Saying Again

All the premature hysteria about balloting in Florida leads, inevitably, to a discussion of the Florida results of 2000. Richard A. Baehr of The American Thinker addresses some of the premature hysteria, after having dealt a death blow to “The Myth of the Stolen Election”. Dave Kopel at Independent Institute, in this section of a piece on “Fifty-nine Deceits in Fahrenheit 9/11”, also puts the myth of the stolen election to rest (for those who are open to reason).

What needs to be said, once more with vehemence, is that it is the voter’s responsibility to cast a ballot correctly. Chads don’t hang unless voters allow them to hang. Touch screens don’t record votes incorrectly unless voters are careless about using them and fail to review their selections before pressing the “vote” icon. And so on.

When election results are contested this year — as they surely will be — the main cause of controversy will be voter error. Remember that in the hysteria that ensues November 2.

Literacy Tests — An Idea Whose Time Has Gone

Jonah Goldberg of The Corner favors literacy tests, in principle. It’s true that all votes aren’t created equal. Some are more informed and reasoned than others. Why should the stupid majority tyrannize the intelligent minority? But who would concoct such a test, and who would determine what constitutes a passing grade?

Ah, there’s the rub. You can be sure that the tests and standards would be jiggered to suit the party in power at the time they’re established. And you can be sure that, once established, it would be difficult thereafter to change the tests and standards. There would be the usual “firestorm of controversy” and all that. So we’d be stuck with some combination of tests and standards that tends to exclude certain classes of people and skew election outcomes in the way that literacy tests and poll taxes did in the South for so many decades.

The real problem isn’t that too many people vote. The real problem is that their elected representatives, in pandering for votes, have usurped powers that aren’t rightly theirs. The solution, if one is ever to be found, lies in the proper interpretation of the Constitution by the Supreme Court. Making that happen should become a serious, long-term project of conservatives and libertarians, working together.

(There, I’ve re-established my credentials as a true libertarian by shooting down the idea of literacy tests. And I’ve suggested an alternative that ought to please libertarians. Please, may I have my “libertarian” card back?)

Another Reason to Elevate Justice Thomas

Jonathan Ringel, writing at law.com, notes this “bombshell” in a recent biography of Justice Clarence Thomas:

Thomas, says [Justice Antonin] Scalia, “doesn’t believe in stare decisis, period.”

“If a constitutional line of authority is wrong, he would say let’s get it right,” says Scalia. “I wouldn’t do that.”

Right. And neither would most judges. So what if Social Security is unconstitutional — to take but one example — and a big ripoff, to boot? Let’s just leave the ripoff in place.

Anyway, it’s nice to know that a prospective chief justice has the right stance on stare decisis. When judges get it wrong, their successors should get it right, just as the Michigan Supreme Court did recently in reversing a 23-year old precedent that had enabled municipal governments to seize private land and give it to other private users.

(Thanks to Freespace for the tip.)

I Hope So

The subhed on this story reads “Next chief of the Supreme Court might be Thomas, biographer says“. I think Bush would nominate Thomas in a heartbeat, but (1) Bush must win re-election, (2) Rehnquist must retire, and (3) the Senate must approve the nomination. The first event seems likely (by a slim margin, at the moment). The second event probably would follow from the first. As for the third event, Democrats might like to filibuster the nomination, and some would try to do so, but could they actually block a black nominee for Chief Justice who has already served on the Court for 13-plus years? I don’t think so. Even some moderate Senate Democrats — if there are any left in 2005 — might split with their far-left brethren.

Oops, Here’s the Last Word

UPDATED BELOW

It all began with Michelle Malkin’s post about her new book, In Defense of Internment: The Case for “Racial Profiling” in World War II and the War on Terror. It escalated into exchanges between Malkin and Eric Muller, guest-blogging at The Volokh Conspiracy. I’ve been commenting from the sidelines, and I thought I was through when I said

The ultimate word goes to Instapundit, because he agrees with what I’ve said about the Muller-Malkin exchange, namely, “most of the discussion has to do with things that happened 60 years ago, as opposed to what we ought to do now.”

But Malkin gets the last word because she has summarized her recommendations for the present emergency:

…I am advocating narrowly-tailored and eminently reasonable profiling measures such as:

…The post-September 11 monitoring of Arab and Muslim foreign students on temporary visas.

…Airport and travel screening measures that subject individuals of certain nationalities to heightened scrutiny; preventive detention of known illegal aliens, suspected terrorists, or enemy combatants; immediate deportation of illegal aliens from terror-sponsoring and terror-supporting nations; a moratorium on temporary visas to countries with large al Qaeda presences.

…Heightened scrutiny of Muslim chaplains and soldiers…serving in the military and in prisons.

In addition,…I discuss the need for “structural reforms that allow our country to better meet the potential threat posed by future Kenji Itos (he was a suspected intelligence agent for Japan who was acquitted of federal charges because prosecutors couldn’t introduce MAGIC into a civilian court), Jose Padillas, and Zacarias Moussaouis but that also allow enemy combatant designations to be reviewed by an independent board or court.” I also draw lessons from the need to protect MAGIC during WWII and apply them to the current need for more secrecy in some vital national security matters today….

UPDATE:
Eric Muller and Greg Robinson are still trying to rebut Malkin. Click on this link to their most recent post, then scroll down to see more. I think they’re just nit-picking and being smarmy because they’ve been kicked in the teeth (figuratively) by an intellectually tough opponent who (rightly) isn’t cowed by their Ph.D. degrees. Judge for yourself.

In the "So What?" Department

Today’s Washingtonpost.com blares this headline: Alabama Executes 74-Year-Old Man
(subhed: Infirm Convict’s Death Spurs Debate on Age, Appeals Process)

Then we read that

J.B. Hubbard’s failing body kept him lying in bed — a bunk on Alabama’s death row — most of the last days of his life. Other inmates say they walked his wobbly frame to the showers and listened to him complain about the pain: the cancer in his colon and prostate, the hypertension, the aching back. They combed his hair because he couldn’t. They washed him.

When spasms of dementia made him forget who he was — what he was — they told him: a 74-year-old, small-town Alabama man gone bad, a twice-convicted murderer, the oldest inmate on “the row.” He left them behind, these most unlikely of caretakers, one month ago and was transported south to a drab, gray prison set back in the cotton fields of lower Alabama. As the sun was tipping toward the horizon, Hubbard was put to death there Thursday, becoming the oldest inmate executed in the United States in more than six decades.

Oh, but wait:

Hubbard’s attorneys had argued that his execution for the 1977 killing of Lillian Montgomery, the 62-year-old owner of a Tuscaloosa general store, would be an act of “cruel and unusual” punishment and an indefensible stroke of public vengeance against a man they said had a low IQ to go along with a host of ailments, including hepatitis and emphysema.

“An old, frail man isn’t dangerous,” said Bryan Stevenson, a lawyer with the advocacy group Equal Justice Initiative in Montgomery, who had consulted with Hubbard.

But prosecutors said long-overdue justice was being done and railed against a court system that took 27 years to execute a two-time killer.

See, Hibbard was 47 years old when he killed Lillian Montgomery. And he wasn’t too frail to kill her.

Hibbard should have been executed no more than 26 years ago, soon after his heinous crime and while he was well enough to fully appreciate the justice of his execution. The problem isn’t that Hibbard was too old and ill to be executed. The problem is that it took so long to happen.

The Inevitable Fate of Campaign Finance Reform

Even The New York Times admits it:

For the second time this campaign season outside groups that are not legally allowed to coordinate with Mr. Kerry’s campaign are riding to its rescue at a crucial time in its advertising campaign against President Bush – the most expensive on record. The spots hit just when Mr. Kerry ceased advertising and when Mr. Bush increased his with commercials reminding the nation of what it has been through, the dangers that lie ahead and, in one released Tuesday, declaring it is “rising to the challenge.”

What an amazing coincidence!

Not that the failure of McCain-Feingold bothers or surprises me. But it would have been better if McCain-Feingold had died in Congress or had been invalidated by the Supremes. Flouting the law foments disrespect for the rule of law.

A Leftist Version of the First Amendment

Dem lawmakers say Fox News is unbalanced

UPI – Tuesday, August 03, 2004

Date: Tuesday, August 03, 2004 7:13:55 PM EST By HANNAH K. STRANGE, UPI Correspondent

WASHINGTON, Aug. 3 (UPI) — Several members of Congress sent a letter Tuesday to Rupert Murdoch, owner of Fox News, to express their opposition to what they say is the network’s “unfair and unbalanced” bias towards the Republican Party.

The group, composed of 38 Democrats and Independents from the U.S. House of Representatives, has requested that Murdoch meet with them to discuss their concerns.

“The responsibility of the media is to report the news in an unbiased, impartial and objective manner,” the letter reads….

I guess they’re upset that all major media outlets don’t tilt to the left. What do you expect from legislators who believe that the Constitution is their license to redistribute income?

The Fruits of Judicial Meddling

Remember those detainees at Guantanamo whose “rights” the U.S. Supreme Court was so avid to protect? Well, BBC News reports this:

Guantanamo inmates refuse review

Five detainees at the US naval base in Guantanamo, Cuba, have refused to participate in military hearings to review their cases, officials say….

The reviews were set up after the US Supreme Court ruled the detainees had a right to challenge their detentions….

The detainees who refused to appear when called this week were [a] Saudi, [a] Moroccan and three Yemenis….

* one Yemeni admitted being with Osama bin Laden during the siege of the Tora Bora caves near the Afghanistan-Pakistan border in 2001 and was “captured with an AK-47 rifle”

* the Saudi, 29, fought on the front line in Afghanistan and was later captured in Pakistan

* the Moroccan, 32, was a Taleban fighter captured by the Northern Alliance in Afghanistan

The first detainee who was reviewed, a 24-year-old Algerian, reportedly said he would “kill Americans” if released.

Don’t you sleep better at night knowing that the U.S. Supreme Court has placed their non-existent rights above your safety?

The Wisdom of Limited Government, Confirmed Again

Matthew A. Crenson and Benjamin Ginsberg, professors of political science at The Johns Hopkins University, have written Downsizing Democracy: How America Sidelined Its Citizens and Privatized Its Public. This review by Robert Heineman tells me all I need to know. Here are some excerpts from the review:

…Somewhere in the middle of the twentieth century, the authors assert, policy elites became disengaged from the political public because a mass base was no longer needed for influencing and manipulating public policy….

[T]he proliferation of special interests in the nation’s capital has provided bureaucrats with a ready substitute for public approval and support. In the authors’ words, “The era of the modern citizen, which began with a bang, is quietly slipping away”….

Group conflict within the beltway now dominates American politics, and by the mid–twentieth century political scientists viewed group activity as “the essence of American politics”…. With the rise of what Theodore J. Lowi has critically described as interest-group liberalism, government became little more than a broker for competing interests. Moreover, in terms of information and access, the increase in regulatory institutions at the national level has given group leaders located within the beltway a tremendous advantage over their colleagues in other parts of the nation. Perhaps of most concern, these “insider” groups themselves now discourage their members’ active political involvement….

The proliferation of groups that function without public support has been encouraged by major changes in the litigation process. By providing successful plaintiffs with a right to legal fees in many cases, Congress has encouraged attorneys to push advocacy and tort litigation, which in turn has been facilitated by judicial loosening of the requirements for standing and class action. Thus, special interests now can obtain from the courts policy decisions that previously would have required political pressure on elected officials….

Despite the acuity of the authors’ insights into the dire direction of the U.S. policy process, they seem oblivious to the possibility that big government itself is the cause of the problem….

Indeed.

In summary: The pigs keep demanding a bigger public trough at which to feed, and their “public servants” in Congress continue to comply.

Note to Colorado Democrats…Not So Fast

Colorado Democrats think they’ve found a way to tip 4 of the State’s 9 electoral votes to Kerry, even if Bush wins the popular vote in Colorado. How? They’ve floated a ballot initiative that would split the State’s electoral votes in proportion to the popular vote. The formula would, in most cases, result in a 5-4 split in favor of the candidate with the most popular votes in Colorado. The initiative has garnered enough signatures to be placed on the November ballot.

Fortunately, there are two obstacles to the passage of this scheme. First, it must be approved by a majority of Colorado’s voters, which is unlikely because most (if not all) Bush voters will reject it, and some Kerry voters will reject it on the off-chance that Kerry will win Colorado’s popular vote. Second, even if it’s approved by a majority of Colorado’s voters it will be challenged as unconstitutional (that’s the U.S. Constitution I’m talking about). As it says in Article II, Section 1, paragraph 2 of the U.S. Constitution:

Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors…[emphasis added].

It seems to me that a ballot initiative, in this case, would amount to an unconstitutional usurpation of legislative power.

(Here’s the story. Thanks to Ed Driscoll.com for the tip.)

Sayonara to Government Land-Grabbing?

I hope this starts a new trend (from the Detroit Free Press, via Michelle Malkin):

Poletown seizures are ruled unlawful

State Supreme Court restricts government rights to take land



July 31, 2004

BY JOHN GALLAGHER

FREE PRESS BUSINESS WRITER

Reversing more than two decades of land-use law, the Michigan Supreme Court late Friday overturned its own landmark 1981 Poletown decision and sharply restricted governments such as Detroit and Wayne County from seizing private land to give to other private users.

The unanimous decision is a decisive victory for property owners who object to the government seizing their land, only to give it to another private owner to build stadiums, theaters, factories, housing subdivisions and other economic development projects the government deems worthwhile.

Detroit and other municipalities have used the Poletown standard for years to justify land seizures as a way to revitalize.

In the decision, the court rejected Wayne County’s attempt to seize private land south of Metro Airport for its proposed Pinnacle Aeropark high-technology park. The Pinnacle project, announced in 1999, is geared to making Wayne County a hub of international high-tech development linked to the airport….

Here’s the best part:

Justice Robert Young, who wrote the lead opinion, called the 1981 case allowing Detroit’s Poletown neighborhood to be cleared for a GM plant a “radical departure from fundamental constitutional principles.”

“We overrule Poletown,” Young wrote, “in order to vindicate our constitution, protect the people’s property rights and preserve the legitimacy of the judicial branch as the expositor, not creator, of fundamental law.”

It’s exhilarating to read such utterances from a State supreme court.

The Berger Affair, Again

NewsMax.com reported yesterday that the National Archives denies a report that Sandy Berger is in the clear. Blogospheric lefties have been touting a report to the contrary by the Wall Street Journal. Here’s the NewsMax.com story:

“In spite of what the Wall Street Journal said, the National Archives really isn’t commenting on this case because it’s under investigation,” Susan Cooper, chief spokeswoman for the Archives, told NewsMax.com.

The Journal reported in Friday editions:

“Officials looking into the removal of classified documents from the National Archives by former Clinton National Security Advisor Samuel Berger say no original materials are missing and nothing Mr. Berger reviewed was withheld from the commission investigating the Sept. 11, 2001, terror attacks. … The conclusion by Archives officials and others would seem to lay to rest the issue of whether any information was permanently destroyed or withheld from the commission.”

The Journal report was picked up by ABC Radio network news, which further misreported the story by saying that the Justice Department had cleared Sandy Berger of all charges.

But Ms. Cooper disputed the claim that she or any other Archives official had said any such thing.

“We really have had nothing to say and will continue to have nothing to say about the particulars of the [Berger] case,” Cooper told NewsMax. “I gather that there’s somebody else in the food chain that has been talking about the case but it’s not at the Archives.”

In keeping with her no-comment policy, the Archives chief spokeswoman declined to confirm an earlier Washington Post report that Berger had destroyed four of the six copies of the Millennium Plot After Action Review stored in Archives files.

Cooper also declined to say whether draft copies of the document with original notes in the margins were among the papers Berger’s lawyer Lanny Breuer said his client had “discarded.”

Seems fair and balanced to me.

I’ve posted twice before about l’affaire Berger, here and here. In the first post I drew on 30 years’ experience in dealing with classified information to question the veracity of Berger’s claim that he “inadvertently” removed classified notes and documents from the National Archives. The second post was just for fun, comprising quips of the sort you might hear on late-night TV.

I won’t guess at what Berger really did or why he did it. That’s for the FBI and, possibly, the courts to resolve. Whatever Berger did at the National Archives may or may not be an indictable offense. Otherwise, it doesn’t matter in the grand scheme of life. Here’s why: Suppose that Berger was trying to cover up his failure, while he was Clinton’s national security adviser, to authorize strikes on Osama bin Laden. How would reconstructing Berger’s failure be of help in preventing future terrorist attacks? Hindsight in such matters is unlikely to produce useful foresight. It isn’t enough to know that bin Laden is in your crosshairs, you must be willing to pull the trigger. Berger, apparently, wasn’t willing to pull the trigger. Would a future Berger be willing to pull the trigger? There’s no way of knowing, no way of ensuring that it would happen.

Getting It Right about the Patriot Act

Orin Kerr at The Volokh Conspiracy responds to a claim by Alex Tabarrok at Marginal Revolution about the Patriot Act. In Kerr’s words,

Alex has a post suggesting that the Patriot Act is a bad law because it has been used to do some dumb things. Here is the post…:

Yeah, I feel much safer now

The USA Patriot Act has so far been used to fine PayPal $10 million dollars in an effort to crack down on internet gambling, it’s been used to intimidate a New York artist’s collective, and most recently to shut down a Stargate fan site.

Kerr then assembles the facts, which lead him to this conclusion:

So, at least as I see it: (1) it is true that a provision in the Patriot Act was used to crack down on Internet gambling, leading to a civil settlement; (2) it is not fair to say that the Patriot Act was used to intimidate a group of artists; and (3) the Patriot Act was not used to shut down a fan site.

More importantly, there’s a lot we don’t know about the effects of the Patriot Act, namely, (1) the extent to which it has deterred terrorism or made it more difficult and (2) the extent to which it has yielded valuable information about terrorist plots that have been thwarted or are being monitored.

Economists are shockingly naive at times. Well, not shockingly to me, because I’ve worked with so many of them.

Trial Lawyers

I’d rather deter torts and compensate their victims through litigation, and the threat of litigation, than resort to legislation and regulation. (Resorting to legislation and regulation is, as the cliche goes, like taking a shotgun to a fly.) Litigation, however, has become legislation via the courts. And, in most States, it’s really a get-rich-and-stay-rich scheme for a bunch of trial lawyers.

Tort law, as practiced by John Edwards and his ilk, goes beyond deterring and rectifying torts. The mind-boggling awards and settlements gleaned by trial lawyers, with the permission of the States, have bad consequences for consumers: higher prices and fewer products and services — medical services among them. Edwards and company may care about the “little guy” who can bring them big bucks; they care nothing for the many little guys who pay higher prices and find medical care harder to get.

Tort reform is as overdue as a deadbeat’s car payments. But tort reform isn’t possible if Democrats are in power.

  • Comments? Click here.

    • Call-Blocking and Free Speech

    The Corner‘s Jonah Goldberg, noting that political organizations aren’t covered by the Do Not Call Registry Law, says “it would in fact be worse if the government could block political speech because it’s inconvenient” to the person receiving an unsolicited call. Let’s put aside the Do Not Call Registry for a moment, and consider the real issue.

    Remember door-to-door salesmen? (If you don’t, you certainly don’t remember bums.) Well, if you didn’t want salesmen or bums knocking at your door, you would post a “No Soliciting” sign on your gate or at your front door. That would usually deflect unwanted callers (as we used to refer to people who came to the front door). If that didn’t work, you would post a “No Trespassing” sign, which clearly meant “Don’t come here without an invitation unless you’re a postman, census taker, sheriff, police officer, or fireman.”

    Unsolicited phone calls are like door-to-door salesmen and bums. The callers have a right to call people who are willing to be called, but they don’t have a right to call people who don’t want to be called. It’s my phone and my house, dammit. There’s no free speech issue. Does freedom of speech give anyone the right to burst into your house at dinner time and shout “Joe Schmoe for dogcatcher!”? I don’t think so.

    Now, the only question is how to block those uninvited calls. The best way is to sign up for caller ID and buy a call bouncer, which blocks calls from designated numbers and diverts calls from other numbers to your answering machine unless you’ve flagged them as “acceptable.” Calls from acceptable numbers will ring longer before going to the answering machine. That gives you a chance to pick up if you’re there and want to do so. (The setup also allows you to screen your calls and avoid long-winded conversations with friends and family when you don’t have time for such conversations.) The technology works and it’s cheap.

    The Do Not Call Registry is just another pseudo-panacea. It’s a “gift” from the same people who gave you the McCain-Feingold Act.

    Headlines I’d Like to Read

    Some headlines and subheads that came to mind as I fumed about the Supremes’ power grab in the detainee cases:


    Bush Defies Court on Detainees, Citing Liberty Corner

    8 Justices Resign in Protest of Bush Move

    President Nominates Thomas as Chief Justice,

    Vows to Name 8 “Like Justice Thomas” to Fill Vacancies

    Nader on Ballot in 50 States, Endorsed by Gephardt

    Bush Wins

    First Candidate with Popular Vote Majority since 1988

    Coat Tails Enlarge GOP Majority in House

    Senate Majority Grows to 67-33

    Bush’s First Post-Election Budget a Stunner

    Cuts Non-Defense Spending in Half

    “Just a Start,” President Says

    Bush Sends Social Security Reform to Congress

    Easy Passage of Privatization Seen

    Eventual Doubling of Average Retiree’s Benefit “A Cinch,”

    According to Leading Economists

    Bonus headlines:


    Senate Ousts Kerry for Poor Attendance

    Mass. State Police Reopen Kopechne Case

    Hollywood Liberals in Mass Exodus to France

    Chirac Nationalizes French Film Industry,

    Caps Stars’ Salaries at $1,000 a Week



    Gore Admitted to Bellevue Hospital

    Sources Cite “Bizarre Behavior” on Election Night

    Others Say Gore “Seemed His Usual Self”

    Michael Moore’s Studio Burns to Ground, No One Injured

    Investigators Say Lightning Struck on Sunny Day

    Moore Sees Bush in Plot with God

    More about War and Civil Liberties

    In the previous post I chastised the U.S. Supreme Court for finding that enemy combatants taken on foreign soil have access to American courts, saying that the Court’s rulings “give aid and comfort to our enemies.” That is the effect of the Court’s rulings, it seems to me. But I’m certainly not accusing the Court of treason. (There will be no “Impeach Earl Warren” bumper stickers on this site.)

    I am nevertheless irked by the Court’s willingness to intrude into matters where it need not intrude. That is why I cited the counter-example of an earlier Court’s ruling in the case of the Japanese-Americans who were relocated during World War II.

    Some might think that my views on the Court’s present rulings are inconsistent with my trashing of Cass Sunstein for his statist views (see here, here, here, here, and here). I see a vast difference between Sunstein’s philosophy and mine.

    Sunstein proposes a permanent diminution of liberty for the sake of achieving certain outcomes, such as avoiding group polarization (though how this can be achieved by government coercion is beyond me) and advancing FDR’s essentially socialist agenda for America (which, to our detriment, has been achieved in the main).

    I am not talking about the diminution of anyone’s liberty (unless it counts as a diminution of liberty to capture enemy soldiers). What I am saying is this: It is a perfectly legitimate defense of liberty to treat our enemies as enemies when we are engaged in a legal war. When we begin to treat our enemies as mere criminals, and inject them into civilian courts, we accord them a status they do not deserve, and we put ourselves at greater risk of losing liberty, life, and happiness.

    For a much longer treatment of this and related issues, click here.

    The Court Opines

    The U.S. Supreme Court has found against the government in the cases of Yaser Esam Hamdi, an American citizen being held at Gitmo as an enemy combatant, and several foreign nationals also being held at Gitmo. All were captured abroad, fighting in the cause of the Taliban.

    Specifically, the Court has ruled that the plaintiffs in both cases are entitled to access to American courts — Hamdi because he is a citizen, the others because they are being held at Gitmo, which is effectively U.S. territory. These narrow decisions aren’t unmitigated losses for the forces of anti-terrorism. (You can read them here and here.)

    I take away this lesson: Don’t ship enemy combatants to Gitmo, hand them over to the Afghanis or Iraqis.