The Long War, the Federal Courts, and the Necessity/Legality Paradox
Stephen I. Vladeck
American University - Washington College of Law
December 12, 2008
University of Richmond Law Review, Vol. 43, 2009
American University, WCL Research Paper No. 2008-80
This paper is a solicited review of Ben Wittes's book "Law and the Long War: The Future of Justice in the Age of Terror," which rightly suggests that there would be far less legal uncertainty today vis-a-vis the conduct of the war on terrorism had the Bush Administration sought - and had Congress provided - framework legislation governing issues ranging from the detention of "enemy combatants" to surveillance and even interrogation.
Nevertheless, the review takes issue with Wittes's critique of the role of the courts thus far, especially his contention that the Supreme Court's decisions to date may be seen as "positioning itself for a veritable sea change in the relationship between the federal branches in wartime." As I argue, Wittes's critique of the courts suffers from two flaws: First, as a descriptive matter, he unconvincingly dismisses (even while noting) a competing narrative of the role of the courts (and the Supreme Court in particular) in the war on terrorism - as a model of judicial restraint, characterized by denials of review in most terrorism-related cases, narrow holdings on the merits, and implicit guidance to the political branches on how to avoid more serious confrontations.
Second, and more deeply, Wittes suggests that such aggressive judicial review is dangerous, because it will lead to the courts having to pass upon programs that may be necessary, albeit illegal. In his words, "Judges are exactly the wrong people to ask permission to break the rules, either because they will refuse (as Taney did) in situations in which the president cannot honor the refusal or because they will acquiesce to steps that the judiciary ought not permit and certainly ought not cloak in the respectability of law." In this vein, Wittes's concerns powerfully mirror those articulated by Justice Jackson in his dissent in Korematsu - of the dangers that courts will conflate necessity with legality. While I share in those concerns, the review argues that Wittes (like Justice Jackson before him) is wrong to conclude that the optimal solution in those situations is for the courts to stay out of such disputes altogether.
Number of Pages in PDF File: 27
Keywords: Wittes, Korematsu, terrorism, judicial reviewAccepted Paper Series
Date posted: December 14, 2008
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