Your comment reminds me of the story attributed to Winston Churchill in which Churchill is drunk and asks a woman if she would sleep with him for an enormous sum of money. When she replies that she would, he drops the price dramatically, and the woman is deeply offended, asking, “what kind of woman do you think I am?” Churchill responds, “Madam, we’ve already established what kind of woman you are. Now we’re just haggling over the price!”

You might think that’s ok — but it sure ain’t business as usual.

Of course, you believe that the Executive should be able to break into the home of a U.S. citizen, rifle through their belongings, place them under arrest, and detail them indefinitely, even if they love America and are decorated U.S. war heroes who would never dream of doing anything even remotely unpatriotic.

And so do I — *If* the government has warrants, and proves its case beyond a reasonable doubt at trial that the person committed a crime pursuant to a valid statute that authorizes the sentence. (That is, the question isn’t the power, it’s the circumstances in which the power can be legally excersized that matters.)

The real issue is not the absence of judicial review, of course. Rather, the real questions are (i) whether the criteria for military detention to be enforced by judges via habeas review do enough work in cabining the scope of military detention authority (or if instead they are so broad that there really isn’t much point to the judge’s review), and (ii) whether the procedures to be employed on habeas review provide sufficient assurances against false positives to make the process fair and legitimate. In your restatement of Frank’s post, his aim was simply to highlight that first concern. Fair enough if so.

Frank did not write that he was “worried that the decision favors executive unilateralism in the form of unchecked discretion to decide whom to subject to military detention.” He expressed worry that, even as subject to judicial review, the detention authority recognized by the court is extremely broad. He also expressed worry that the detentions in question are being done for purposes of coercive, often illegal, interrogations — and that’s correct, too. Al Marri is a case in point: He was *already* in custody, awaiting trial, when the President ordered him transferred to indefinite, incommunicado military detention. Thus the military detention was *not* for purposes of incapacitation — it was for purposes of coercive interrogation. (If I were Motz, I would have made much more of this point — she discusses it on page 38, note 19.)

I thought Judge Motz’s rhetoric was what Frank found disturbing.

I thought Judge Motz’s rhetoric was what Frank found disturbing.

The majority of the court (Motz writing for 4, plus Traxler) not only agreed that federal courts have habeas jurisdiction to review the legality of al-Marri’s detention, but also that al-Marri may not have received adequate process during his habeas review. It is true, of course, that a different majority of the Court agreed that al Marri could be subjected to military detention if the government can come forward with sufficient evidence that he is an al Qaeda operative, but the important point for purposes of your separation of powers concern is that a federal judge will determine whether the government has met that burden.

The majority of the court (Motz writing for 4, plus Traxler) not only agreed that federal courts have habeas jurisdiction to review the legality of al-Marri’s detention, but also that al-Marri may not have received adequate process during his habeas review. It is true, of course, that a different majority of the Court agreed that al Marri could be subjected to military detention if the government can come forward with sufficient evidence that he is an al Qaeda operative, but the important point for purposes of your separation of powers concern is that a federal judge will determine whether the government has met that burden.