Some people ask — but what if we were doing something really, really bad to the Guantanamo detainees, or for that matter to Nazi or Japanese soldiers taken prisoner in World War II? Or, which is what the question amounts to, what if there were charges that we were doing something really, really bad: Torturing them (or, if you think that torture is sometimes permissible, torturing them just out of sadistic motives), or killing them on a whim, or the like. Shouldn’t civilian courts get involved then?
I think the answer is no, just like civilian courts ought not get involved when we do bad things in war to non-prisoners — for instance, when we kill innocent civilians in misguided bombing campaigns. There are lots of awful things that the government may try to do to foreign nationals in foreign lands as part of a war effort. Some are necessary and some are not, some are proper and some are not, some are downright evil.
But not every evil is properly remedied through civilian courts. That’s been the traditional view throughout American history, that’s likely the original understanding of the Constitution, and it seems to me that it’s the most practically effective approach. Certainly we shouldn’t mistreat prisoners, or unnecessarily bomb innocent civilians. I think, though, that the remedy for that should be through the executive branch (or possibly in some measure through Congress), as influenced by American citizens, and in some situations as influenced by the views of other countries (views to which the executive should quite properly listen to, though of course not always defer to). Historically, for instance, other countries have advocated on behalf of their citizens who are detained as wartime captives — as has been apparently the case for some of the Guantanamo detainees.
Civilian courts are good, though expensive, ways to resolve civilian disputes. They embody lots of protections aimed at keeping the government from entrenching itself in power at the expense of domestic dissenters. They are set up to err on the side of protecting liberty, since in most domestic law enforcement situations that’s the right direction to err in. They enforce a Bill of Rights that has been developed through the experience of domestic law enforcement.
But our reliance on civilian courts as a way of dealing with civilian problems doesn’t mean that civilian courts must be the ultimate means for dealing with all problems generally, or even all problems that involve risk to innocent people’s lives and liberties. The traditional practice has been to leave the authority — and the responsibility — for dealing with military matters, including military detentions, to the President, as constrained in some measure by Congress. On balance, I think it is best to leave it there, and to check that authority through the means of publicity and public pressure (both foreign and domestic), rather than by bringing in federal judges.
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