Nine years after 9/11, we still do not have a clear legal framework in place for responding to the threat of terrorism and to al Qaeda in particular. Fingers must be pointed across the board: the Executive Branch, Congress, and the courts all have failed the American people.
The inability of two Administrations to develop a cohesive counterterrorism strategy is problematic enough. However, the failure of our nation's judiciary to step in and play their critical role - one that only they can play - goes far beyond that.
Last week, the D.C. Circuit Court of Appeals rejected [PDF] Ghaleb Nassar al-Bihani's petition for rehearing, en banc, its January decision [PDF] upholding his detention. The specific facts and justification for his detention aside, the decision is but the latest manifestation of a deeply troubling tradition of judicial deference to the executive when America is under direct or perceived attack.
Judge Brown's previous uncompromising rejection of the need to apply traditional law of war principles in today's conflict with terrorist groups and other non-state actors is not reflected in the recent decision. It is replaced, however, by an equally - if not more - damaging framework: the complete abdication of any role for the judiciary during conflict, whether traditional war or the complex counterterrorism operations the U.S. is engaged in today and, tragically, tomorrow.
"The Constitution entrusts the President - not the Judiciary - with the conduct of war," states Judge Brown in her concurring opinion in denying rehearing. While surely judges are not expected to conduct military operations, this statement is problematic if not dangerous.
First, it detracts from our fundamental constitutional framework. In one fell swoop, constitutional principles of checks and balances and separation of powers are discarded. Precisely because the U.S. Congress is but the most obvious and public example of the absence of either rational debate or reasoned discourse in contemporary American political culture, one could only hope that the judiciary would step into this enormous vacuum.
After all, Abu Ghraib, waterboarding, indefinite detention and extraordinary rendition are but the clearest examples of the price paid when Congress and the judiciary look the other way.
In a society based on the Rule of Law, the judiciary has a crucial - perhaps the crucial - role in ensuring the protection and implementation of that Rule of Law. Without it, the executive and the legislature go unchecked. In times of crisis, especially when America is responding to threats to its national security, an unchecked executive is a recipe for disaster, a tale we have seen all too often before. We must avoid a rerun at all costs. Just ask the 120,000 Japanese-Americans interned in the aftermath of Pearl Harbor or the aliens unjustifiably and unconscionably deported in the aftermath of the Palmer Raids.
Second, this judicial abdication leaves the battlefield - however that is defined in today's conflicts - in the Executive Branch's exclusive domain given the absence of judicial review. In particular, the law of war, the very body of law that Judge Brown so willingly rejects, governs how we conduct military operations, from targeting to detention to occupation.
Courts apply our constitution and domestic law during peacetime; they must equally apply the law of war to conduct during wartime.
Just as Justice Jackson warned at home that an unfettered executive is a threat to the Rule of Law and our system of checks and balances, so he emphasized at Nuremberg the importance of making statesmen accountable to the law during times of war. Without such accountability - available only through independent judicial review - the rule of law can easily be overtaken by the rule of force.
Indeed, the law of war is not one of rights and privileges alone. With rights come duties; with privileges come obligations. Thus, the use of force must bring with it the obligation to use force in accordance with the fundamental principles of the law of war, including distinction, proportionality, military necessity and humanity.
Our judiciary's unfortunate and consistent deference leaves the executive free to exercise its rights and privileges with no concern about the obligations - precisely because our system of separation of powers falters at the first sign of conflict or other national security threats.
Executive action in the absence of any independent checks and balances opens the door to violations of individual rights and the dangers of unregulated warfare. Rejecting a role for the judiciary in wartime matters means - in a nutshell - that the court is abdicating its role in enforcing our domestic and international obligations.
Laurie R. Blank is the Director of Emory Law's International Humanitarian Law Clinic.
Amos N. Guiora is a Professor of Law at the University of Utah's SJ Quinney College of Law, and his most recent book is Freedom from Religion: Rights and National Security (OUP, 2009).
Suggested citation: Laurie R. Blank, Amos N. Guiora, Judicial Abdication in Times of War: Lessons Not Yet Learned, JURIST - Forum, Sept. 13, 2010, http://jurist.org/forum/2010/09/judicial-abdication-in-times-of-war-lessons-not-yet-learned.php.