From the Founding right up until the still-quaking bombshell of Hamdan v. Rumsfeld, issued at the end of the Supreme Court's term in late June, the primary imperative of national government was to protect the security of the governed from hostile outsiders. The Framers, however, had an ingenious gloss on this venerable first principle. In the great American experiment in republican democracy, this power of self-preservation--what Justice Felix Frankfurter, in another era of grave peril, called "the most pervasive aspect of sovereignty"--would repose only in those political actors directly accountable to the people whose lives hung in the balance.
The arrangement made exquisite sense. On the one hand, if the public's representatives were insufficiently attentive to national security, those with the most at stake could vote them out of office. On the other hand, if public officials failed to give due deference to the civil rights that guarantee our freedom, Americans, lovers of liberty, could show them the door. The epicenter of this dynamic would be the President of the United States, the only public official (besides the Vice President) elected by, and accountable to, all of the people.
Judges? They would have no role in national security. They, after all, are politically unaccountable. This is neither to disparage them nor suggest they are irresponsible, much less unpatriotic. They are unaccountable to the people because they are accountable only to the law. And not some universal law. They are custodians of the people's laws, those governing the domestic body politic.
Those laws quite intentionally handcuff government for the sake of promoting freedom. They thus have no place in the international arena, a state of nature in which nations, insurgent militias, and, now, transnational terrorist networks all claim the right to use force. "The circumstances that endanger the safety of nations are infinite," Hamilton observed in "The Federalist" (No. 23). "For this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed."
In stark contrast, within the domestic realm, government would have a comparative monopoly on the legitimate use of force. Security would not be as pressing a concern. Within this fortress, judicial courts could guarantee Americans freedom from oppressive action by their government. They could preserve the rule of law indispensable for the American body politic to flourish. It was for those reasons--in abeyance of mortal danger--that the nation could afford to insulate them from popular passions, whims, and safety concerns.
However patently central it is to a good society, the judicial function remains largely irrelevant to the international order. For all the blather about our "international community," it is an ersatz community, lying beyond our laws and democratic choices. Unlike dreamy modern internationalists, the Framers well understood that broad swaths of this "community"--enemies of the United States--would always pose threats, some existential, to the body politic.
Such threats are not legal problems. They do not principally involve Americans being deprived of their legal entitlements by their government--the cases and controversies judicial power was designed to resolve. They are clashes between the American national community and the outside world. They are the stuff of political power--diplomacy, force, and all the intermediate measures wielded by the political branches. The judicial power has no place because American courts are part and parcel of the American national community; they do not exist outside or above it.
In our system, rising to external threats from alien forces with no claim on the protections of American law would be the domain of the political branches. In times of crisis and war, it would be uniquely the province of an energetic executive. All the immense might the United States could muster for its self-preservation would be concentrated in one set of hands, able to act swiftly and decisively to quell enemies endlessly variant in size, strength, and method of attack.
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In 2004, the budding juristocracy had first flexed its new wartime muscles with an unprecedented grant of American court access to alien enemy combatants (i.e., non-American terrorists) engaged in a barbaric war against Americans. Specifically, the Supreme Court held, in Rasul v. Bush, that America's enemies could use America's courts to file habeas corpus petitions challenging their detention by America's military, which had been sent into battle by America's president after a sweeping authorization overwhelmingly approved by America's legislature.
Americans, it should astonish no one to learn, were not in favor. They pressed their accountable representatives to act. Congress responded with last December's Detainee Treatment Act (DTA). It provided, in no uncertain terms, that "no court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba."
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Thus with Hamdan, the unaccountable branch, the one the Framers excluded from life-and-death matters of the state, has entered the nation into the very suicidal treaty the people's elected officials sagely shunned. And what rights must be accorded under CA3 to savages seeking to supplant American democracy with a fundamentalist caliphate? Why, freedom from "outrages upon personal dignity, in particular humiliating and degrading treatment," and "all the judicial guarantees which are recognized as indispensable by civilized peoples." This is to say, capaciously promiscuous guarantees the parameters of which will eventually be determined not by those whose lives hang in the balance, but by federal judges.
