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In Defense of Emergency

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5 Responses

  1. MJ says:

    Oh come on Eric. What Mr. Krauthammer is saying is that these type of decisions have always been left to the Executive and Legislative Branches and that – particularly given the DTA Congress just passed last year – should remain so. He only points to Korematsu as evidence of how deferential the Court has been in matters of national security and the conducting of war. All he is saying is that a change in the sensibilities of the Court is not a warrant to override what the other two branches have done in creating polices in the conduct of the war on terror.

    Congress – which, by the way, sat on its hand for four years after the administration established these tribunals – just told the courts last December with the DTA that the courts do not have jurisdiction over this issue, yet the Court had other ideals. That’s not extraordinary? Read the relevant text of the DTA and tell me how the Court even had jurisdiction to intervene here.

    Saying that the conducting of war should be left to the elected branches – as it has always been – is not the same thing as saying the Court “cheated” the other two branches out of their “entitlement to suspend civil liberties.”

    And let’s not even get started on the Court’s interpretation of Article 3 of the Geneva Conventions.

  2. Amen to what MJ just said. Mr. Muller’s (by no means unique here at CO) contempt for the President permeates nearly every posting he makes. If the matter really was one of “civil liberties” then I think the Court (esp. this one) would have noted Constitutional underpinnings for their decision. Instead, Congress can simply make more explicit what was already obvious to most (except, perhaps, to those of an Ivy-only education).

    I look forward to further laments here at CO as Hamdan celebrates his big win for years to come, all the while dressed in orange.

  3. Eric Muller says:

    MJ: “What Mr. Krauthammer is saying is that these type of decisions have always been left to the Executive and Legislative Branches and that – particularly given the DTA Congress just passed last year – should remain so. He only points to Korematsu as evidence of how deferential the Court has been in matters of national security and the conducting of war.”

    Phew! Thanks for clearing that up! And here I thought Krauthammer was saying that Korematsu reflects a valid and valuable legal principle. How could I have gotten that impression? It’s not that Korematsu was right; it’s that the posture of judicial deference that produced Korematsu “should remain so.” Got it.

    Maryland Conservatarian: How silly of me to think that matters of “civil liberties” can involve statutes! When of course they can only involve the Constitution!

    I’m learning a lot here this morning!

  4. MJ says:

    If you think that saying “if the court permitted Korematsu, how can it prohibit this” – which is what I took Mr. Krauthammer to be saying – is the same thing as saying “Korematsu was correct” then I guess you’re right.

    None of that, of course means that Hamadan is correct.

  5. “I’m learning a lot here this morning!”

    glad to be of help, Professor