The war is over. Our peerless armed forces took Tora Bora and, when we finally let them, Fallujah. But al-Qaeda won in Washington, and that has made all the difference.
The War on Terror has radically altered the compact between the American people and their government by dramatically changing the nature of the U.S. courts. Until this new, unaccountable monster is caged, it will continue to devour our political community’s capacity to wage war and to defend itself.
And that caging had better happen soon, because the word “war” in this context refers only to our nation’s forcible military response after the 9/11 attacks finally made the atrocities of radical Islam impossible to ignore any longer. Our response did not start the war. That war, radical Islam’s jihad against the United States and the West, continues — and ever more perilously. As we hollow ourselves out by the day, we become a much softer target.
Last Friday, the U.S. Court of Appeals for the D.C. Circuit dealt a crushing blow to national defense. The three-judge panel’s ruling in
al Odah v. United States has gotten scarce media attention. Perhaps that’s understandable: It’s a mind-numbing technical dispute over “discovery” in litigation, vying for attention against the socializing of our economy and the consequent collapse of the stock market. But the discovery in question is the most vital kind, namely, that of classified national-defense information. What is in dispute is how much sensitive intelligence we must share with enemies bent on annihilating Americans — enemies against whom the people’s representatives have authorized, by overwhelming margins, the use of force. That is, these “petitioners” are the militants who — along with al-Qaeda’s hierarchy and affiliates — use the intelligence we give them against the soldiers we have dispatched to fight the battles Congress has authorized, under the direction of a president whose first duty is the prosecution of the war.
Most significantly, the issuing court has declared an end to the war. No formal armistice has been announced, of course. Instead, as T. S. Eliot would have it, the judges are ending the war not with a bang, but a whimper. They are declaring it over by failing to acknowledge that it is, or ever was, on. It isn’t even background noise.
BOUMEDIENE AND THE REMAKING OF FEDERAL COURTS
Some background, though, is in order. Last June, in its cataclysmic Boumediene decision, the U.S. Supreme Court ruled — against the weight of precedent, tradition, and common sense — that non-U.S. nationals, held by the military outside sovereign American territory (i.e., beyond the writ of American judges) as prisoners captured in a war authorized by Congress, are nevertheless vested with a constitutional right to challenge their detention as enemy combatants in our courts. The decision was a calamity on many levels, but two merit our immediate attention.
First, the 5–4 majority dramatically and dangerously revolutionized the separation-of-powers doctrine that is the cornerstone of our liberty. For more than two centuries, we proceeded under the assumption that a self-determining people makes its most significant decisions through the political process, with policymakers answerable to voters and therefore removable if they fail either to protect our security or to respect our freedom. Courts were insulated from the political process, but only because it was understood that they respected their limited role (safeguarding the individual rights of Americans) and refrained from entering the political sphere — especially the formulation of national-security policy, which involves the most important decisions a political community makes, decisions for which the courts have no institutional competence.
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