JAG CENTRAL

Today, the Supreme Court handed down several opinions in the Enemy Combatant cases. While not giving the whole boat away, they did secure the right for the combatants to get some sort of review in the American judicial system. A lot of people smarter than me are commenting on this - probably the two best posts I've seen on the issue are from Phil Carter and Eugene Volokh. Phil Carter writes this post from the liberal perspective:

Lest anyone mistake this point, the Supreme Court decided to weigh in today on the matter. On page 29 of Hamdi v. Rumsfeld, 542 U.S. ____ (2004), Justice O'Connor writes this for the 8-1 majority:

"[W]e necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet & Tube, 343 U. S., at 587."

Eugene Volokh paints a less rosy picture of the future of the war on terrorism as a result of these rulings:

Litigation will become a tactic of warfare. As I understand it, soldiers generally think they have an obligation to continue trying to harass their captors -- for instance, by trying to escape -- even once they're captured. Here we'd be giving them a cheap (for them) and safe way of doing that. If I were the other side's general, I'd actually teach my soldiers how to file habeas petitions (not everyone would have to know how to do that -- there'd just have to end up being some soldiers in every prison camp who can write the petition on their comrades' behalf). This would be a very substantial burden, and one that to my knowledge we've never had to labor under.

Maybe...but we as a nation require ourselves to fight many fights with arms tied behind our back. We often have to fight enemies with tactics more civilized than the tactics they fight us with. If we follow the "substantial burden" logic Prof. Volokh argues, shouldn't we scrap the Geneva Convention since no other potential adversary would likely follow it? Shouldn't we endorse instead of denounce the actions at Abu Ghraib? (NOTE FOR THE SLOW: I'm being sarcastic.) Following that logic to its conclusion seems a perverse result, and one against our values as a nation. Our nation is an experiment in democracy. Many quote the Supreme Court passage that "our Constitution is not a suicide pact." I disagree. The whole idea of an experiment is that it MIGHT FAIL. If we truly believe in our values in our nation, we have to follow them through thick and thin. It may mean that we are vulnerable to our enemies. But that's what faith is all about.

OK, off my soapbox. What does this mean for military justice? 4 words...lots of late nights. The workload of the JAG Corps and the Justice Department has just doubled. Litigation will no longer be soldier support and rear area operations; just as Professor Volokh has predicted, litigation has become the front line of the fight against terrorism, and JAGs act as the guardians.