Terrorism poses many kinds of challenges. One of the most wrenching is the question of how far we are willing to go in our quest for security. Will we sacrifice our ideals? What should we accept as the moral, constitutional, and international limitations on practices like detention, interrogation, and mass surveillance?
An equally compelling question under our constitutional structure is who will make these society-defining decisions. What should be the relative involvement of Congress, the President, and the courts?
In a series of historic cases, the Supreme Court undertook providing a check against antiterrorism detention policies designed by the executive branch to avoid judicial oversight. Many of these cases involved non-U.S. citizens held at the Guantánamo Bay detention camp.
These opinions are an embarrassment to the legal profession. Incalculable judicial resources are invested in providing elaborate, often arcane, explanations for why the court in question should not consider the merits of each case. Some courts offer multiple procedural defenses in multi-section opinions; others dispose of a case on one procedural ground while noting that other possible excuses remain in reserve. These excruciating exercises in procedure follow excruciating recitations of the plaintiff’s allegations: terrible accounts of the U.S. government’s involvement in kidnapping, torture, unconstitutional surveillance, targeted killings beyond any battlefield, and other secret operations.
The bottom line in case after case is that the courts have managed to absent themselves from even considering whether many highly questionable governmental policies and practices are illegal or unconstitutional.