As the members of this Society know, however, answering legal questions often involves a close reading and a critical analysis of a text -- the Constitution, statutes, judicial decisions, and the like. Regrettably, this point is much too often lost in the public discourse on the subject. Newspapers, commentators, and even prominent lawyers often discuss critical questions about national security policies with barely any acknowledgement that the answers may depend on the language of, say, the Constitution or a statute. And critics of this Administration's policies rarely draw distinctions between whether a course of action is permitted as a matter of law, and whether that course of action is prudent as a matter of policy.
For example, earlier this year, the head of a legal organization that prides itself on what it calls its "nonpartisan approach to the law" gave a speech condemning what he called "the oppressive, relentless, and lawless attack by our own government on the rule of law and our liberty." According to this person, we live now in a -- "time of repression" where the "word 'Patriot' names a statute that stifles liberty," and where we face "assaults by our government on constitutional rights, the Separation of Powers, and the Geneva Conventions." You can practically hear the rumble of tanks in the background.
It is interesting -- and telling -- that even in the published, written version of these remarks by a lawyer, the references and footnotes are not to statutory texts, the Constitution, treaties, or laws. Instead, the author relied on such authorities as the
Also completely absent from these remarks, and from many remarks like it, is any fair appraisal of the legal issues actually involved or an acknowledgement of the difficulty or novelty of the legal questions confronted by the Administration lawyers who made these decisions. Nor was there any discussion of the atmosphere in which these decisions were made. I was in New York City when the two planes hit the Twin Towers, and I know what it was like to be in the city at that time. But I cannot speak from any experience of my own to what it was like to be a lawyer in the Justice Department at that time. There must have been almost unimaginable pressure, without the academic luxury of endless time for debate. The lawyers called on to make critical legal judgments at that time - and in real time - certainly had no time to consult the New York Review of Books when looking for answers to these difficult and pressing questions.
If you listen only to the critics, you might assume, for example, that this Administration, by asserting that habeas corpus did not apply to alien enemy combatants, had tried to deprive the judiciary of a time-honored role in second-guessing our military commanders' decisions concerning whom to detain on foreign battlefields. Of course, before this armed conflict, federal judges have never asserted the authority to afford habeas corpus to alien enemy combatants captured and detained abroad.
As even the majority in Boumediene acknowledged, the Supreme Court had "never held that noncitizens detained by our Government" outside the United States had "any rights under our Constitution." Indeed, following World War II, the Court had specifically rejected that habeas corpus would apply in that context. The Administration's position in Boumediene thus was at least arguably justified by text, history, and precedent. A majority of the Supreme Court may have disagreed, but the Administration's position hardly constitutes the attack on habeas corpus asserted, but not explained, by its critics like the author I quoted.
And when people denounce a purported assault on the "Geneva Conventions," you might expect some level of specificity in the charges. One cannot "assault" a treaty as an abstract concept; one can only violate the treaty by acting contrary to its words. The Geneva Conventions contain 319 articles, of which 315 are plainly addressed to armed conflicts among the nations that signed the Conventions. It is hardly surprising that the United States concluded that those provisions would not apply to the armed conflict against Al Qaeda, an international terrorist group and not, the last time I checked, a signatory to the Conventions.