| Follow-up of this story, and rolled over to Monday. One of the most important legal decisions in the past year. See the Volokh Conspiracy opinion piece for more. |
A powerful federal court, ruling on broad issues, has brushed aside international law and the laws of war, saying only domestic law restricts the president's power to hold an enemy combatant.
Even viewed in isolation, the decision has considerable weight.
The 2-1 ruling was handed down in the case of a Guantanamo detainee seeking release through a constitutional, or habeas, review of his case. But instead of being a paean to the power of the writ of habeas corpus, language in the opinions supporting the ruling may instead serve as a rallying cry for those who say it is time for the president and Congress to face reality and recognize the old rules no longer apply.
U.S. Circuit Judge Janice Rogers Brown wrote the majority opinion, and a separate concurrent opinion agreeing with the majority document. In that second opinion, in a highly unusual departure from judicial custom, Brown sets out a chilling vision of the stakes and new tactics in the war against terror.
"War is a challenge to law, and the law must adjust," Brown wrote. "It must recognize that the old wine skins of international law, domestic criminal procedure or other prior frameworks are ill-suited to the bitter wine of this new warfare. We can no longer afford diffidence. This war has placed us not just at, but already past the leading edge of a new and frightening paradigm, one that demands new rules be written. Falling back on the comfort of prior practices supplies only illusory comfort."
The U.S. Court of Appeals for the District of Columbia Circuit is sometimes called the second highest court in the land. It reviews all cases arising from Guantanamo claims, and its decisions in that venue must be followed by the other U.S. circuit courts of appeal.
The decision brought a response from Jonathan Hafetz, staff attorney with the American Civil Liberties Union's National Security Project.
"After eight years, the continued detention of prisoners without charge is an affront to the Constitution," Hafetz said in a statement. "Today's court opinion is a setback to justice and the rule of law. The unnecessary endorsement of excessive military detention power and the suggestion that America is free to defy international law flouts all precedent and, if actually adopted, would jeopardize America's security as well as its values." |